CONTEST FOR GOVERNOR. 


PETER TURNEY, Contestant, 
vs. 

H. CLAY EVANS, Contestee. 


Minority Report 

... of... 

General Committee 

...of... 

Investigation. 









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INVESTIGxVTION OF GUBERNATORIAL CONTEST. 


3 


MINORITY REPORT. 


To the Joint Session of the General Assembly of Tennessee, Co 7 ivened 
tmder the Act of January 29, 1895, to Try the Contest of the Office 
of Governor of this State between Hon. Pete 7 Turney, Contestant, 
and Hon. H. Clay Evans, Contestee: 


The undersigned members of the commit¬ 
tee heretofore appointed under the ^act 
approved January 29, 1895, entitled ‘‘An 
Act regulating the procedure in deter¬ 
mining the vote for Governor in case of 
contest,” beg leave to submit the follow¬ 
ing report as an embodiment of their 
views touching the merits of the contro¬ 
versy, and the results of the investigation 
upon which the committee has for the last 
forty days been engaged. 

We have heretofore expressed our views 
in protests duly entered upon the jour¬ 
nals of the respective houses, against the 
constitutionality of the resolution provi¬ 
ding that the contestant should hold 
the office of Governor over and beyond 
bis constitutional term, pending a contest 
in which he was contestant, claiming that 
he had been re-elected to the office. We 
have heretofore thought and still tffink 
that it was a plain duty under the Con¬ 
stitution of the Speaker of the Senate 
to open and publish the returns of the elec¬ 
tion which had been made to him in pur¬ 
suance of the laws regulating that sub¬ 
ject, and that when that was done the per¬ 
son who was shown on the face of said re¬ 
turns to have received a plurality of the 
votes cast in the election, was ipso facto 
Governor, and should have been inducted 
into the office. We were willing to con¬ 
cede the power of the legislature by a re¬ 
troactive law, to provide for a contest, 
but we thought at the outset, and are now 
confirmed in the opinion, that the contest 
should have proce^ed with the contestee 
Evans in possession of the office to which 
he had prima facie title upon the face of 
the election returns. 


We Ijave also expressed our views touch¬ 
ing the unconstitutionality, unfairness, 
and impolicy of said act of January 29, 
1895, and we wiU not encumber this re¬ 
port by a further reference to the subjects 
already fully adverted to in our formal 
protest, except to say, that we have not 
after mature refiection and calm consider¬ 
ation, seen any reason to change the views 
therein expressed by us, but we have rath¬ 
er been confirmed in their soundness from 
a legal and constitutional point of view 
and in the wisdom of our suggestions from 
a political point of view. 

While, as we have stated, we are will¬ 
ing to concede the i)ower of the legislature 
to provide by a retroactive law for a 
contest, in view of the fact that the con¬ 
stitution has recognized the right and des¬ 
ignated the tribunal, and nothing was 
left to the legislature except to provide 
the mode of procedure, yet we deem it 
appropriate to call attention, that, neith¬ 
er expressly nor by implication, does the 
act of January 29th, 1^5, declare that its 
provisions apply to the election held on 
Nov. 6, 1894. Tffiis being so,there seems to 
be grave doubt as to whether it is within 
the province and power of the General As¬ 
sembly to determine the present contest, 
under the provisions of said act. 

It seems to be “the settled and inflexi¬ 
ble rule that a statute will be construed 
as prospective and operative in future 
only, unless the intention of the legis¬ 
lature to give it a retroactive effect is ex¬ 
pressed in language too clear and explicit 
to admit of a reasonable doubt.” 

3rd Vol. Am. and Eng. Ency. of Law 
p. 757-758; Cooley’s Const. Lim., 370. 
stitution. 







4 


THE MINORITY REPORT OF 


I. 

Action of tlie Committee, Makinsr Up 
Issues and Adopting? Rules. 

From the expressions of the public-jour¬ 
nals which favored the contest proceed¬ 
ings, from the statements in pamphlet 
printed and widely circulated by Mr, Wil¬ 
liam H. Carroll, Chairman of the Demo¬ 
cratic Executive Committee, and from a 
manifesto issued by the full committee 
of that party only a few days before the 
General Assembly met, we were encour¬ 
aged to believe that it was the desire and 
purpose of the dominant party in the legis¬ 
lature to institute and car:^ forward a 
full and thorough investigation of alleged 
frauds, illegalities and irregularities, 
which it was claimed had occurred and 
been practiced in the Governor's elec¬ 
tion. The advocates of these measures in 
the Senate Chamber and on the floor of 
the House promised the country that the 
investigation shoitld be complete and thor¬ 
ough, and should not be restricted within 
the narrow limits of technical rules of 
pleading and evidence. 

However, after the bill had been passed, 
the contestant Turney flled a voluminous 
petition, which upon its face bears the 
evidence that it had been prepared even 
before the passage of the bill. 

Contestee Evans was only allowed five 
days in w^hich to file his answer 
to the specific charges of the petition, 
and to file his counter petition, and al¬ 
though this pleading required immensely 
more labor in its preparation than that 
of contestant Turney, it was prepared and 
filed within the short time allowed. 

With very few unimportant exceptions. 
Contestant Turney made no charges of 
acRial fraud, but relied alone upon the al¬ 
legations that in certain of the districts in 
the counties to which he had filed objec¬ 
tions, voters had been permitted to vote 
without being required to produce to the 
judges of election the evidence prescribed 
by the Act of 1881, hereinafter to be men¬ 
tioned, that they had paid the poll taxes 
for 1883, for which they were liable under 
the revenue law^s of this state. 

Some of the few exceptions above re¬ 
ferred to were: 1st. That in Campbell 
county, in the First and Ninth districts, a 
republican had openly bought votes for 
Contestee Evans; 2d. That at the Moores- 
burg district of Hawkins county a number 
of votes cast for Contestant Turney were 
corruptly counted for Contestee Evans, 
and, 3d. That in Knox county republican 
deputies were appointed by the republi¬ 
can sheriff to go into the polls and mark 
ballots for voters in violation of law. 
Neither of these charges were substan¬ 
tiated by proof, and the committee has 
so decided. 

The contestee Evans, by this, manner, 
denied and put in issue every material 
averment of contestant Turney’s peti¬ 
tion, and filed a counter petition in which 
he charged not only the non-production 


of i)oll-tax receipts by the voters m the 
several districts of about forty counties, 
but the actual non-payment of poll taxes 
assessed against democratic voters in these 
counties, and in many of the counties ob¬ 
jected to, he charged the grossest actual 
fraud, ballot-box stuffing and fraudulent 
counting, by the friends and supporters of 
contestant Turney, done in his interest. 
These charges have been fully sustained 
by proof; and, in a number of instan¬ 
ces, no attempt to disprove them was 
made. 

The committe appointed under said Act 
met to consider and determine what par¬ 
ticular matters they would investigate un¬ 
der the pleadings made up by the parties, 
and in our opinion adopted certain rules 
and made certain decisions upon the plead¬ 
ings, which were exceedingly unfair to 
the contestee Evans; and as a result of 
said rulings by a majority of said com¬ 
mittee, the investigation of the charges 
made by contestee Evans was practically 
cut off, while the contestant Turney/ was 
allowed the utmost liberty and the great¬ 
est freedom to investigate the charges 
made by him. 

The rules adopted by a majority of the 
committee, and under which the investiga¬ 
tion has been conducted, are as follows: 

“1. The objection to the respective coun¬ 
ties specified by the parties in the petfi'on, 
answer, cross petition and replication hav¬ 
ing been considered by the committee and 
the issues made thereby under the act of 
January 28, 1885, approved January 29, hav¬ 
ing been ascertained, defined and deter¬ 
mined, no evidence which is immaterial or 
irrelevant to the issue as ascertained and 
defined as aforesaid shall be taken or re¬ 
ceived by this committee or anj’' section 
thereof, and such evidence as is material 
and relevant to such issues under the laws 
of this state and under the rules and prin¬ 
ciples recognized by congress and the gen¬ 
eral assembly of Tennessee or either house 
of the assembly in contested election cases, 
shall be received and taken. 

“2. A general averment of irregularities 
in any county, followed by an attack upon 
designated voting precincts in that county, 
puts in issue the vote of such precincts only 
as are specifically enmnerated, and sub¬ 
committees will take and hear evidence in 
such cases alone as to those voting pre¬ 
cincts specifically enumemted and attacked. 

“3. Unless the party filed exceptions to 
a county on the call of counties by the joint 
convention he shall not be permitted to in¬ 
troduce evidence attacking tbe vote of a 
county, although he may bave presented an 
issue thereon by his pleadings; provided the 
attack of either piarty upon the vote of any 
polling place puts the entire vote of that 
polling place in issue, so that both parties 
may prove and have the benefit of all alle¬ 
gations affecting the same. 

“4. Neither party shall be permitted to 
call and examine more than two witnesses 
upon, any uncontroverted question of fact,, 
or to call or examine witnesses upon im¬ 
material or irrelevant issues or matters, or 
concerning matters admitted by the plead¬ 
ings; and either party calling witnesses in 
violation of this rule shall pay the cost and 
expenditures incident thereto. The commit¬ 
tees will not recommend such costs for pay¬ 
ment by the state. 








INVESTIGATION OF GUBEENATORIAL CONTEST. 


D 


“5. Either party applying for subpoenas 
for -witnesses will be required to state in a 
written application the questions of fact 
upon which said witnesses are to be exam¬ 
ined and what their testimony is expected 
to be upon said question. 

“6. The forty days within which the tak¬ 
ing of evidence is limited by section 9 of 
the act regulating the procedure, etc., will 
not begiu, until Monday, the 25th day 'of 
February, 1895. 

“7. That the chairman of eacll sub-cgmmit- 
tee shall as often as practicable forward the 
testimony and proof taken by them to the 
chairman of the central sub-committee at 
Nashville, in care of the clerk of the sen¬ 
ate, together with a brief abstract of said 
testimony: and that counsel for contestant 
and contestee be furnished a copy of said 
proof as rapidly as printed, and the clerk 
of the senate will allow representatives of 
the press to inspect said testimony, pro¬ 
vided he does not allow it to be taken out 
of his possession. 

“8. This committee, being satisfied from 
the eleventh official United States census 
and the certificate duly authenticated and 
filed from the department of the interior 
that 25 per cent, of the voters of Tennessee 
are not liable to poll taxes or assessable 
therefor, and the taking of evidence of in¬ 
dividual voters to prove their respective 
ages being impracticable and expensive, and 
in the end not liable to be more accurate 
than the official records of the census taken 
by the United States officials under oath; 
and it further appearing that the rule is not 
only substantially accurate, but pist alike 
to both parties, it is ordered that it be taken 
that the rule established that 25 per cent, 
of the voters of any and every precinct be 
accepted and taken as not liable to the pay¬ 
ment of poll taxes and in dealing with the 
vote of any district, precinct or county it 
shall be dealt with on that basis. In the 
absence of proof as to which of the candi¬ 
dates such non-liable voters voted' for they 
shall be prorated among the candidates for 
Governor according to all the votes cast 
at said precincts for them respectively.” 

The minority of the committee ofPered 
the following rules, which were tabled 
and rejected by the majority', to-wit: 

“1. Neither contestant nor contestee shall 
be restricted in taking proof to the issues 
which the committee have made, but may 
take such proof as either of them or either 
counsel deem material and necessary to de¬ 
termine the truth or falsity of any of the 
charges made by contestant or contestee 
in the petition or cross petition, so that the 
vote cast for Governor can be determined 
by the genral assembly in joint convention. 
But either party taking immaterial or irrel¬ 
evant testimony will be taxes with the costs 
of taking and printing the same. 

”2. Whereas, the people of the state of 
Tennessee demand a full, fair and complete 
investigation of the alleged frauds in the 
recent election for Governor; be it 

“Resolved, by this committee that both 
the contestant and contestee be allowed to 
take proof upon all matters set out or vjm- 
plained of in the petition or cross petition, 
and when said proof shall have been taken it 
shall be filed with this committee. But 
either party taking Immaterial or irrelevant 
proof sLalTbe taxed vdth the costs incident 
to taking the same. The proof may be taken 
before either of the sub-committees of this 
committee. 


“3. Where the sole charge either in the 
original petition or in the answer is that 
the voters were not required to or did not 
in fact produce poll ta^c receipts or duplicates 
or affidavit* the inquiiy shall not be discon¬ 
tinued, but shall proceed further to ascer¬ 
tain whether, in fact, the poll taxes were 
actiially paid. 

“4. The committee is not to adjudge and 
determine finally as to the admissability, ma¬ 
teriality or relevancy of testimony offered 
by counsel upon any question raised in the 
pleadings and relevant to the issues made 
up between the contestant and contestee. 
But testimony, when offered, shall be taken, 
received and filed, subject to exceptions, as 
in suits in the courts of the state is pro¬ 
vided.” 

The minority of the committee prepared 
the following protest, which they would 
have submitted to the committee, but 
a majority was not present and they 
were unable to submit the same, to-wit: 

“We, members of the committee appointed 
to take testimony in the case of 1‘eter Tm*- 
ney. contestant for the oifice of Govei-nor, 
against H. Clay Evans, dissent from and pro¬ 
test against the action of the majority of the 
committee in certain rulings and set forth 
below the reasons for such dissent and pro¬ 
test: 

“First—Inasmuch as this contest was be¬ 
gun by and at the instigation of the demo¬ 
cratic state committee, which charges the 
republicans with wholesale, deliberate and 
systematic violations of the poll tax law; 
and inasmuch as Contestant Turney in his 
petition charged a conspiracy of the same 
kind and charged republican leaders, some 
by name and others. Contestee Evans among 
them, by implication, with encouraging these 
violations of law, we dissent from and pro¬ 
test against the action of the majority of 
the committee, denied, as the charges were 
by Contestee Evans, in refusing to "consider 
issues rfiade and to take proof on these por¬ 
tions of the petition and answer. 

“Second—We strongly dissent from the 
rulings of the majority of the committee in 
considering the pleadings relating to certain 
counties which will be hereafter named, 
which rulings declare that the allegations 
of contestee in regard to violations of the 
poll tax law In the counties hereafter to be 
named in the following words: 

“ ‘That said voters so liable for said poll 
tax were not required to produce, and did 
not in fact produce to the judges of election 
of the several precincts, districts and vot¬ 
ing places of said county any statutory evi¬ 
dence that they had paid said poll tax, but 
their votes, were nevertheless received and 
counted for the contestant,’ were insuflacient 
as specifications. The refusal of the ma¬ 
jority to allow issue to be made on such an 
allegation we regard as an unfair and un¬ 
warranted contraction of the scope of the 
investigation and that it goes to prevent 
that full and complete investigation demand¬ 
ed by fair dealing and public sentiment, 
since provision has been made for an in¬ 
vestigation of the Governor’s election. That 
part of contestee’s allegations above quoted 
was intended to put in question the whole 
of the counties about which they were used 
and that is their plain meaning. This is an 
extraordinary case in which the broadest 
and most liberal construction should be given 
to the law to the end that the people of Ten¬ 
nessee may be fully Informed as to the truth 
or falsity *of the charges made in this con 




6 


THE MINORITY REPORT OF 


teet, but the majority bas, in our opinion, 
wrongfully construed tbe law so as to pre¬ 
vent an investigation in a considerable num¬ 
ber of counties and parts of counties by 
disregarding tbe plain and specific meaning 
of tbe charges in Oontestee Evans’ answer 
and counter charges to Contestant Turney’s 
petition. 

“Among the counties and parts of counties 
so ruled out are the following: Tlie whole 
of Giles county, Henry county, except three 
districts; all of Madison county as far as 
an investigation of the violation of the poll 
tax law was demanded; Maury county in the 
same manner; Moore county, although Con¬ 
testant Turney admitted the charge as to 
part of that county; all of Smith county, ex¬ 
cept the tovm of Carthage; all of Coffee 
county, as far as investigation of violations 
of the poll tax law were demanded; all of 
Dyer county, except one district; all of Fay¬ 
ette county, as regards violation of the poll 
tax law, except one district; Franklin coun¬ 
ty, except two districts; Grundy county, ex¬ 
cept three districts; Hardeman county, ex¬ 
cept one district; all of Lauderdale and Put¬ 
nam counties; Wilson county except two 
districts; MTiite county, except five districts, 
and Van Buren county, except three dis¬ 
tricts. Parts of other counties objected to 
by Contestee Evans were excluded from the 
investigation by the construction of the law 
adopted by the majority. We believe that 
this action is unjust to the contestee and 
greatly prejudices his case; that it is a 
strained construction of the law; that it is 
a construction that wmuld not be adopted 
hy any court in the land and that it so lim¬ 
its the investigation as to in a great degree 
insure its failure, if its purpose is to pro¬ 
cure a full knowledge of the facts of the 
election for Governor of Nov. 6, 1891. All 
of which is respectfully submitted. 

“JOHN W. STONH, 
“SAM P. ROWAN, 
“JAMES JEFFRIES, 
“W, J. HODGES, 

“L. C. KEENEY.’’ 


The minority also dissented from and 
objected to the adoption of the 1st, 2d. 
5th and 8th rules; they did not and 
do not interpret or construe the contest 
law as conferring power or authority 
on this committee to eliminate from the 
pleadings any of the issues joined by the 
parties to the contest. They did not and 
do not concur with the majority in the 
adoption of the 25 per cent, rule, based 
upon the United States census, to the 
exclusion of all other evidence on the 
subject. We call attention to the fact 
that the proof shows 124 votes cast in 
the Third district of Fentress county, 
when, by direction of one of the mem¬ 
bers of the sub-committee, it was ascer¬ 
tained that 58 of these voters were over 
the age of 50 years and not liable for 
poll tax for 1803. This was done to test 
the correctness of the 25 per cent. rule. 

II. 

Exceptions l»y Counsel. 

Counsel for Contestee Evans prepared 
certain exceptions to the action of the 
committee in respect to the rules adopted 
by it and to its holdings as to the issues 
presented by the pleadings, which excep¬ 


tions we think were well taken and which 
the majority of the committee has re¬ 
luctantly allowed to be printed, but not as 
a part of the record. They attach said 
exceptions as an exhibit hereto and ask 
that the same may be considered and for¬ 
mally made a part of this, our report, 
and we refer thereto as if here set out 
m.extenso. We call special attention to 
said exceptions, which, together with our 
said protest, plainly and succinctly point 
out many of the inconsistencies and erro¬ 
neous and arbitrary rulings and their ap¬ 
plication to and effect upon the pleadings. 

III. 

As to tlie Plendingrs. 

The pleadings consisted of Contestant 
Turney’s original petition, the answer 
and counter petition of Contestee Evans, 
and Contestant Turney’s replication 
thereto. The rules of the committe lim¬ 
iting the scope of the pleadings after 
they were filed and without affording o;^ 
portunity for amendments were mani¬ 
festly unjust. 

Especial attention should here be called 
to the fact that under the contest law' 
no opportunity is given to amend the 
pleadings; by the terms of the act the 
committee has no power or authority to 
allow an amendment. Contestee was 
therefore powerless and w'as bound to 
go into the investigation under the rules 
adopted by the committee after the plead¬ 
ings had been filed and after the time for 
pleadings had elapsed. The fact that 
the contest law does not admit of amend¬ 
ments of the pleadings and that the rul¬ 
ings of the committee w'ere made after all 
the pleadings had been filed as provided 
in the contest law', should not be left 
out of consideration. Had those rules 
been adopted and established by compe¬ 
tent authority before the pleadings w’ere 
filed they w'ould have been notice to con¬ 
testee to shape the pleadings in accord¬ 
ance with the rules. But such, as w'e 
have shown, was not the case. Instead 
of obeying the spirit and the letter of 
the law, wdiich says: “The pleadings 
shall make the issues,” the committee 
through its majority has usurped the 
power and authority of ‘‘making issues,” 
which alone shall be investigated, and 
eliminating “issues” joined by the par¬ 
ties. In the opinion of your minority, 
the general assembly alone, and not the 
committee, could exercise authority to 
adjudge^ and define the issues which are 
the subject of inquiry. Full opportunity 
should have been given to introduce proof 
upon all the issues joined in the plead¬ 
ings as they w’ere referred to your com¬ 
mittee by the general assembly. 

Contestee Evans’ answ'er took issue up¬ 
on all the material averments of Con¬ 
testant Turney’s original petition, and 
the replication filed by Contestant Tur¬ 
ney took issue upon most of the aver¬ 
ments of the counter petition, and not 
withstanding the fact that Contestant 





INVr.snUATION OF GUBERNATORIAL CONTEST. 


7 


Tiirney had by direct denial in his repli¬ 
cation taken issue of fact upon the aver¬ 
ments of the counter petition, the com¬ 
mittee assumed to decide that the coun¬ 
ter petition, in respect to these matters, 
was not sufficiently specific to call for an 
issue. This action of the committee was 
palpably erroneous, for the reason that 
the Contestant Turney by answering the 
averments had admitted their sufficiency 
in law to raise an issue. For example, 
Contestee Evans charged that in every¬ 
one of the counties of Bedford, Cannon, 
Cheatham, Coffee, Chester, Clay, Da¬ 
vidson, Dickson, Dyer, Fayette, Frank¬ 
lin, Gibson, Giles, Grundy, Hardeman, 
Haywood, Henry, Humphreys, Lawrence, 
Lauderdale, Lewis, Lincoln, Madison, 
Marshall, Maury, Moore. Overton, Perry, 
Putnam, Robertson, Rutherford, Se¬ 
quatchie, Smith, Stewart, Sumner, Tip- 
ton, Trousdale, A^an Buren, AVhite ami 
Wilson, a large number of the votes 
were cast for Contestant Turney by per¬ 
sons who were liable for the poll tax of 
1S93, and who had not paid the same be¬ 
fore they voted. 

This averment was answered by Con¬ 
testant Turney as follows: 

“The contestant, answering the charges 
of conteotee’s cross petition, that votes were 
cast and counted for contestant which were 
illegal by reason of the voter not havmg 
paid his poll tax, * * * contestant does 

deny that any considerable number of votes 
were cast for him by parties who had not 
paid their poll tax.” Book of Pleadings, 
page 159. 

This presented a sharp issue of fact, 
but the committee decided that there was 
DO issue upon this subject. 

But the most objectionable feature of 
this action of the committee is that un¬ 
der the contest law they had no power 
or authority whatever to settle and de¬ 
termine the issues between the parties. 
That was left to the parties themselves 
to settle and determine by their own 
pleadings. Section 9 of the contest act 
defines the powers and duties of the com¬ 
mittee, and it is as follows: 

“Section 9- Be it further enacted. That 
the objection and petition following original 
objections shall be referred to the commit¬ 
tee above mentioned. The committee shall 
take evidence, consider and report upon said 
objections, making their report to the speaker 
of the senate. They and also either section 
shall have power to send for and examine 
persons and papers; to issue compulsory pro¬ 
cess for them, running to every county in 
the state, which may be executed by the 
sergeant-at-arms of either house, or any as¬ 
sistant sergeant-at-arms, or any sheriff, dep¬ 
uty sheriff or constable, or any special agent 
appointed by the chairman of the commit¬ 
tee or by the chairman of any section of the 
committee, and to punish for contempt by 
fine and imprisonment; to employ stenogra- 

S hers; to sit for the taking of evidence at 
fashviUe, and at any and all places in Ten¬ 
nessee, and when, in their judgment neces¬ 
sary, in four sections or sub-committees, to 
take depositions ui)on such notice, and under 
such rules and regulations as they may pre¬ 
scribe in the absence of rules prescribed by 
the legislature; to fix the time in which 


the evidence in chief and rebuttal shall be 
produced or taken, and of argument, and to 
do all things proper and necessary to ascer¬ 
tain the facts and report thereof; provided, 
how'ever, that all the evidence shall be taken 
within forty days next after the issues made; 
provided, that if within forty days the com¬ 
mittee of investigation shall ask further 
time tho assembly may grant the same,” 

The committee by arrogating to itself 
the power of settling the issues and by 
refusing in violation of the statute to 
take the pleadings made up by the par¬ 
ties as making the issues, and thus nar¬ 
rowing the issues in an arbitrary and, 
in many instances, an unjust and un¬ 
reasonable way, and refusing to hear 
proof except upon the issues made by 
the majority of the committee, has de¬ 
prived Contestee Evans of his rights, has 
excluded much material evidence from 
the consideration of the general assem¬ 
bly, thus depriving it of the information 
and evidence necessary to a correct de¬ 
cision of the contest. The sources of in¬ 
formation have been closed by the ma¬ 
jority of the committee and its ac¬ 
tion has largely prejudged and predeter¬ 
mined the contest upon which the assem¬ 
bly alone had a right to pass. 

We here set out and show to the joint 
assembly some of the unfair rulings made 
by the committee against the Contestee 
Evans, which have not already bfeen 
shown. 

The averments of the petition, applying 
to the several counties set out above, and 
charging non-payment of poll tax by vot¬ 
ers in the election were not investigated 
at all. As to each county Contestee Ev¬ 
ans made the following averment; 

“That of such voters so liable for said noli 
tax, a very large number bad not in fact 
paid said poll tax, but were nevertheless 
allowed to vote for contestant, and their 
votes were counted for him and embraced in 
the retiirns.” 

If there was originally any tenable ob¬ 
jection to these averments the objection 
was waived by the answer, according to 
well known rules of pleading. 

But, in our opinion, the averments were 
not obnoxious to the objection taken to 
them by the majority of the committee. 
The contest act^ speaking of specific as¬ 
signments by the contestee, says “desig¬ 
nating the counties, civil districts, wards 
and precincts.” The plain meaning of this 
act is, that where the objection is to the 
entire vote of the county or involves a 
deduction from the aggregate vote of the 
county, th.-. objection is only re¬ 
quired to specify the county; where 
it relates to particular acts of ille¬ 
gal voting, the objection must specify the 
particular box in which the illegal ballots 
were deposited. If Davidson county, for 
example, had refused to conduct the elec¬ 
tion in accordance with the Dortch bal¬ 
lot law, and had voted throughout the 
county in defiance of that law, this would 
have afforded ground for the objection to 
the vote of the county. So the non-pay- 





THE MINORITY REPORT OF 


ineiit of poll taxets by voters involves aji 
objection to the vote of the entire county; 
the taxes are required to be paid to the 
trustee, at his office, and if the taxes are 
not paid, evidence of the non-payment^ 
procurable from the trustee. If it can be 
shown that a given number of voters vo¬ 
ted in the election for contestant Turney 
in a given county without having paid 
their taxes, it is unimportant to show in 
what particular district the votes were 
cast. They were included in the return, 
which is certified as a unit, or in bulk, 
to the Speaker of the Senate. 

There is more reason for requiring the 
specification of the particular box, when 
the vote is illegal or claimed to be idegal, 
on the ground of non-residence, or for the 
non-production of the poll tax receipt, or 
for actual fraud in the vote or count. 

Again,as to all or most of these counUes 
the contestee Evans made the following 
specific charge: 

“That said voters so liable for said poll 
tax were not required to produce to the judg¬ 
es of election, and did not, in fact, produce 
to the judges of election at the several dis¬ 
tricts, precincts, and voting places of said 
county, any statutory evidence that they 
had paid said poll tax, but them votes were 
nevertheless received and counted for con¬ 
testant. 

This averment, without any qualifica¬ 
tion whatever, was made against the 
counting of Giles, Moore and Putnam; as 
to the county of Cannon, the same aver¬ 
ment is foUow’ed by another paragraph 
averring that in the twelfth district a 
large number of persons were permitted 
to vote without exhibiting poll tax receipts; 
the charge as to Clay county is followed 
by another paragraph alleging the same 
condition as to the sixth and twelfth dis¬ 
tricts of the county; as to Coffee county, 
a paragraph is added, charging non- pro¬ 
duction of tax receipts in the first district; 
as to Dickson, the same charge is follow¬ 
ed by another paragraph, applying to the 
first, third, fourth, fifth and twelfth dis¬ 
tricts; against Dyer county, the same 
charge is made and no charge added limi¬ 
ting the charge to any particular district. 
In Gibson county, the charge of non-pro¬ 
duction of poll tax receipts applying to all 
the districts, is followed by paragraphs 
3 and 4, applying the charge to three dis¬ 
tricts, and so on thi-ough the list of coun¬ 
ties objected to by contestee Evans. The 
committee ruled that where the charge 
against each and every of the districts 
of a county was followed by one which ap¬ 
plied only to a few of the districts, only 
the few districts were in issue, notwith¬ 
standing the contestant Turney had made 
specific denials in his answer as to the 
other districts. We think that this action 
of the committee was erroneous. We 
think the committe erred in ruling out 
the investigation of the counties where it 
was charged that in every precinct, ffis- 
trict and voting place, voters were permit¬ 
ted to vote without the exhibition of poll 
tax receipts, duplicates or affidavits of 


loss. This averment is quite as specific 
as if the districts had been set out by 
their number. 

The counter-petition of contestee Evans 
charges that the poll tax law was disre- 
regarded in all the eighteen districts of 
Marshall county, execept the 3rd, 7th and 
15th; it charges that the law was disre¬ 
garded in respect to the exhibition of re¬ 
ceipts in all the precincts, districts and vo¬ 
ting places of Maury county, except in 
the town of Columbia. 

No lawyer or other person can perceive 
any difference in a legal sense between 
the charges against the counties, yet the 
committee decided to investigate Marshall, 
and refused to investigate Maury county. 

As to Robertson county, the charge w^ 
that the law was violated in all the dis¬ 
tricts except Springfield and Cedar Hill. 
In Smith, the same violation was alleged 
against every district except Carthage. 
The committee investigated Robertson but 
refused to investigate Smith, except as to 
the district objected to by contestant 
Turney. 

Against Moore county, contestee Evans 
charged that the voters liable for poll tax¬ 
es were not required to pixxiuce and did. 
not pi-oduce to the judges of election at 
the several precincts of the county any 
statutory evidence that they had paid said 
poll tax. Cdntestant Turney admitted the 
truth of this allegation as to the sixth dis¬ 
trict but denied it as to all the other dis¬ 
tricts of this county. Notwithstanding this 
admission as to one district and the joining 
of issue as to the others, the committee 
decided that no inquiries should be made 
into the vote of this county, claiming that 
■Contestee Evans’ charges were too vague 
and general. The committee of its own 
motion demurred to contestee’s counter¬ 
petition and sustained the demurrer after 
the contestant had answered the allega¬ 
tions of the counter-petition. 

The erroneous and conflicting rulings 
made by the committee against Contestee 
Evans are too numerous to be mentioned; 
many of these not herein set out are 
shown and set out in the exceptions taken 
by contestee’s counsel heretofore made 
part hereof, and those exceptions are 
here referred to for particulars. 

The injustice to Contestee Evans of 
these rulings will be appreciated when 
it is remembered that he filed objections 
to forty-one counties and made specifica¬ 
tions against 789 of the 873 districts and 
voting places of said counties, but by 
the action of the committee the investi¬ 
gation into the election in said counties 
was limited to 253 voting precincts, 
whereas the committee permitted an in¬ 
vestigation, with two or three unimpor¬ 
tant exceptions, of every county, district 
and precinct as to which Contestant Tur¬ 
ney filed any objection. 

Had the charges of Contestee Evans 
been fully investigated in the counties 
against which he ffied charges and speci- 
' fications, and which counties gave 60,823 








INVESTIGATION OF GUBERNATORIAL CONTEST. 


1 ) 


for Turney and 29,<S03 for Evans, a care¬ 
ful estimate will show, using the few 
districts that were investigated as an ex- 
an pie or basis, and after applying the 
arbitrary rule of 25 per cent. estabUshed 
by the committee a reserve in each 
county, that Contestant Turney would 
lose 22,309 votes and Contestee Evans 
on same basis 10,926. This calculation 
would increase Evans’ majority by 11,- 
588. Deduct from this the 2,184 majority 
given Turney by the majority report and 
it would leave Evans a net majority of 
8,S119 votes. 

While we do not believe that the mere 
non-production of a poll tax receipt should 
make a legal voter illegal, and while we 
are firmly convinced that the failure of 
the election judges to examine the receipts 
of voters should not operate to destroy 
an otherwise legal vote, we believe the 
committee ought to have investigated 
the charges in every county and district 
complained of; and if votes are to be re¬ 
jected on this ground in the interest of 
Contestant Turney, the same rule should 
apply in favor of Contestee Evans. 

If the committee had accorded a full 
and thorough investigation of the charges 
made by the Contestee Evans it is per¬ 
fectly apparent that the result would have 
largely increased his plurality, and we 
cannot believe that a majority of the 
general assembly can consent to over¬ 
turning the will of a majority of the peo¬ 
ple and to seating the defeated candidate 
upon an investigation so manifestly un¬ 
fair and partial as that upon which we 
have been engaged. We cannot believ^e 
that this general assembly will permit 
its functions to be monopolized by a mere 
committee to the exclusion of every other 
member who has equal power and equal 
rights. 

The line of policy pursued by the ma¬ 
jority of the committee while testimony 
was being taken was not calculated to 
develop the truth and result in a full in¬ 
vestigation, but on the contrary, Con¬ 
testee Evans’ counsel were restricted 
within the narrowest limits and the most 
rigid rule of technicality was enforced 
against them. 

Many of the requests made by Con¬ 
testee Evans’ counsel for witnesses to 
prove that in the counties objected to by 
Contestant Turney the voters had in fact 
paid their poll taxes, and in the counties 
objected to by Contestee Evans that the 
voters had not paid their poll taxes, 
ought to have been granted and the proof 
taken, but the requests were refused. 

We submit herewith some of the re¬ 
quests of counsel, with such affidavits as 
have been taken on these points, which 
we think should be considered by the 
assembly in deciding the case. 

To illustrate we specify the following: 

In Fayette county it was charged that 
in a number of districts the voters had 
not paid their poll taxes, and in sup¬ 
port of that charge Contestee Evans of¬ 


fered certified transcripts from the trus¬ 
tee’s books, and also exemplifications from 
the records of the county court, giving 
the names of taxpayers who were de¬ 
linquent, which evidence was erroneously 
rejected by the sub-committee, and we 
herewith submit said transcripts and ex¬ 
emplifications, which ought to be read 
in evidence in connection with the depo¬ 
sition of the trustee, for all the purposes 
set out in the exceptions filed by Con¬ 
testee Evans to the rulings of the sub¬ 
committee. 

The committee erroneously rejected evi¬ 
dence offered by Contestee Evans as to 
the Third district of Lauderdale county; 
the ground upon which the evidence was 
rejected was that the district was not 
involved in the specifications. It was in 
point of fact involved, the charges being 
very specific and giving details clearly 
applicable to the Third district, but the 
copyist or printer had made a mistake 
in setting out the number of the district. 
We do not think the investigation shotdd 
hf4ve been cut off by a mere error in the 
number of the district, when it is plain 
that the particular district and voting 
place was intended to be charged. 

Notwithstanding rule 1, adopted by a 
majority of the committee, permitted, 
“no evidence to be taken which is im¬ 
material or irrelevant to the issue as as¬ 
certained and defined by the committee,” 
the majority threw out 15 votes of those 
cast in Rhea county and about 70 votes 
of those cast in Morgan upon the pre¬ 
tended claim that many blank poll tax 
receipts had been issued to voters in said 
counties at the August election; but there 
were no such charges in the pleadings 
against said counties, and the committee 
“joined no such issues.” On the other 
hand, as to Roane and Davidson coun¬ 
ties, there were charges in the pleadings, 
and the committee “joined issues” upon 
them, that blank poll tax receipts had 
been issued for the August election and 
used in the November election; the 
charges as to Davidson county were es¬ 
pecially specific, as will be seen by refer- 
erence to the book of pleadings, pages 
89 and 90. Roane county gave Evans 
a large majority; Davidson county gave 
a large majority for Turney. The proof 
in Davidson county was that 2,000 blank 
poll tax receipts had been issued by the 
democratic trustee to a prominent dem¬ 
ocratic politician in said county prior to 
the August election, and there is evi¬ 
dence that these or many of thern^ were 
used at the November election. Yet no 
votes were thrown out in Davidson coun¬ 
ty on that account: while in Roane coun¬ 
ty. where the proof was not any more 
satisfactory or certain than in David¬ 
son. the majority did throw out about 
400 votes. ^15 of which were taken di¬ 
rectly from Evans' aggregate, and the 
balance of the 40f) votes were pro-rated 
in the ratio of 2,300 to Evans and 597 
to Turney. 





10 


THE MINOKITY KEPOKT OF 


Contestee Evans charged that twenty- 
five illegal votes were cast for Contest¬ 
ant Turney in the Sixteenth district of 
Obion county, but the committee refused 
to permit an investigation of this charge 
upon the ground that the Sixteenth dis¬ 
trict of said county contains two voting 
places. The Contestant Turney made 
a charge that in the Knoxville precinct 
in Knox county he lost twelve votes by 
an alleged false count. Now there is no 
such place as the Knoxville precinct, but 
there are in the city of Knoxville ei^ht 
wards, each having a voting place in it. 
The committee allowed this charge to 
be investigated. The action of the com¬ 
mittee was wrong in one case or the 
other; the decisions are in direct conflict, 
and they show that the widest latitude 
was allowed the Contestant Turney and 
the utmost restrictions were placed upon 
(Jbntestee Evans. 

The rulings of the majority of the com¬ 
mittee in settling the pleadings and of 
the chairmen of the sub-committees in 
the reception and rejection of evidence 
have been manifestly partial towards 
Contestant Turney, and strict and illib¬ 
eral towards Contestee Evans. Through¬ 
out the whole contest the plain purpose 
has been to allow the utmost latitude 
to Contestant Turney and to deny to 
Contestee Evans the right of investiga¬ 
tion whenever, the most flimsy pretext 
for doing so could be found. In carrying 
out this plan the majority of the commit¬ 
tee has not hesitated to involve itself 
in contradictions when found necessary 
to accomplish the object held constantly 
in view. It is deemed unnecessary to 
go further into details, but the partiality 
and illiberality which have marked this 
investigation from the beginning are such 
that if the seating of the Contestant Tur¬ 
ney is accomplished by it it will be ac¬ 
complished by means so questionable that 
they can never be indorsed by thinking 
people of any political party. The ma¬ 
jority of the committee have even gone 
so far as to disregard positions taken by 
the Contestant Turney himself, as has 
already been shown. It has pretended 
to be liberal to Contestee Evans while do¬ 
ing him flagrant injustice. For instance, 
in passing on the averments and an¬ 
swer as to Carter county, the majority 
say: 

“Carter County—In this county the 
committee, though deeming Mr. Evans' 
answer to be vague and evasive, elects 
to treat it as joining issue with contestant 
upon his averments and so direct.” 

The answer of Mr. Evans to the aver¬ 
ment of the Contestant Turney as to Car¬ 
ter county will be found upon page 08 of 
the book of pleadings. It is not “evasive” 
or “vague,” but squarely meets and de¬ 
nies the charges made, and the pretended 
liberality of the committee is based upon 
an erroneous statement calculated to de¬ 
ceive and mislead as to its true purpose. 
But the majority had occasion to make 


use of this ruling as to Carter county, 
and we find the ruling as to Cheatham 
county in these words: 

“Cheatham County—Issue joined as to 
the 1st, 4th, 5th, Oth, 7th, Sth, 10th 11th, 
13th, 14th and 15th as in Carter county.” 

Comparing this ruling with that as to 
Carter county, it would be supposed that 
Contestee Evans had made an “evasive 
and vague” answer to Contestant Tui*- 
ney’s charge as to Cheatham county. 
But how are the facts? Contestant Tur¬ 
ney makes no charges as to that county, 
but the charges come from Contestee 
Evans, and are actually admitted by 
Contestant Turney, and yet the major¬ 
ity charge the Contestee Evans with 
“evasion.” The charges made by Con¬ 
testee Evans as to this county are clear, 
emphatic and specific. They will be 
found on page ^ of the book of plead¬ 
ings. The districts are named. When 
Contestant Turney comes to answer he 
admits Contestee Evans’ charges as to 

districts - - in Cheatham county. 

(See pages 159-160, book of pleadings.) 
And again he says on page 163 that he 
has no doubt districts 2 and 3 of Cheat¬ 
ham county are infected in the same 
way that the districts attacked by Con¬ 
testee Evans are infected. And yet, on 
this state of the pleadings the majoritj' 
ruled there was an issue requiring proof 
on the part of Contestee Evans. And 
this in face of the statute which says that 
“such charges as shall not be denied shall 
be taken and considered by the general 
assembly as true.” Act Jan. 29, 18j95, sec¬ 
tion S. 

Comment upon such rulings is deemed 
unnecessary. They are instanced to show 
how utterly inadequate to the attain¬ 
ment of justice this so-called investiga¬ 
tion has been made by the arbitrary rul¬ 
ings of the majority of the committee. 

IV. 

Unconstitutionality of tlie Poll Tax 
Receipt UaTv. 

Your minority begs leave to here call 
attention to the folloAving paragraph from 
contestee’s answer, which in our opinion 
raisies a material and vital issue: 

“In this connection contestee states that 
he is advised, and he will so insist, that the 
act of the general assembly of 1801. whose 
provisions are set out in the petition, and 
which declares that the judges of the elec¬ 
tion are required to receive certain specified 
evidence of the payment of poll taxes and 
none other, is in conflict and obnoxious to 
the provisions of Article IV. of the consti¬ 
tution prescribing the qualifications of a le¬ 
gal voter, said ai’ticle only permitting the 
legislature to enact that a voter may 
be “required to produce to the judges of 
election satisfactory evidence of the pay¬ 
ment of said tax.’’ No other qualification 
restrictive of the rigiit of voting is pennis- 
sible.” 

To fully understand the force of this 
objection made in the answer of contestee 
Evans, it is necessary to here refer to the 
provisions of the constitution and the stat- 








INVESTIGATION OF GUBEKNATOKIAL CONTEST. 


11 


utes upon the subject of poll taxesi and 
qualification of voters. 

It is provided in section 28, Art. II., of 
the constitution, as follows: 

“All male citizens of this state over the 
age of twenty-one yeaiis, except such persons 
as may be exempted by law on account of 
age or other infirmity, shall be liable to a 
poll tax of not less than fifty cents nor 
more than one dollar per annum. Nor shall 
any county or corporation levy a poll tax 
exceeding the amount levied by the state.” 

In section 12 of Art. XI. of the consti¬ 
tution it is provided: 

“The state taxes derived hereafter from 
polls shall be appropriated to educational 
purposes, in such manner as the general as¬ 
sembly shall, from time to time, direct by 
law.” 

Section 1 of Art. 4. of the constitution 
providesi that— 

“There shall be no qualification attached 
to the right of suffrage, except that each 
voter shall give to the judges of election, 
where he otters to vote, satisfactory evi¬ 
dence that he has paid the poll taxes as¬ 
sessed against him for such preceding period 
as the legislature shall prescribe, and at such 
time as may be prescribed by law, without 
which his vote cannot be received. * * * 

The general assembly shall have power to 
enact laws requiring voters to vote in the 
election precincts in which they may re¬ 
side, and laws to secure the freedom of elec¬ 
tions and the purity of the ballot box.” 

Three acts of the general assembly have 
been passed affecting the poll tax qualifi¬ 
cation of voters. The first was that of 
March 14th, ISfiO, which is strictly in ac¬ 
cordance with the constitution and is as 
follows: 

“Section 1. Be it enacted by the general 
assembly of the State of Tennessee, That 
every person in this state who is otherwise 
a qualified voter under the constitution and 
laws, shall, as a condition precedent to the 
exercise of voting, fm-nish to the judges of 
election satisfactory evidence that he has 
paid the poll tax, if any, assessed against 
him for the year next preceding the election, 
without which his vote shall not be re¬ 
ceived: provided, if any voter has been 
wrongfully assessed for such poll tax, this 
act shall not apply to him. 

“Sec. 2. Be it further enacted. That this 
act take effect from and, after its passage, 
the public welfare requiring it.” 

The next act was that of March 30, 
1891, which, with its title, is as follows: 

“An act to amend an act passed by the 
first extra session of the general assembly 
of the state of Tennessee, on March 11, 
1890, approved March 14, 3890, being Chap¬ 
ter 20, Acts 1890, being op act entitled ‘An 
act to regulate the elective franchise in 
accordance with Article IV., Section 1, of the 
constitution of the state, and to prescribe 
what shall be the satisfactory evidence that 
is contemplated and required in said sec¬ 
tion and article of the constitution and in 
said chapter, which shall be furnished 
judges of elections by one offering to vote, 
that he has paid his poll tax as required by 
said chapter, if any is assessed against him 
for the preceding year.” 

Section 1. Be it enacted by the general 
assembly of the State of Tennessee, That 
Chapter 26 of the Acts of Bxtra Session, 
1890, approved March 14, 1890, entitled an 
act to regulate the elective franchise in 
accordance with Article 4, Section 1, of the 


constitution of the state, be so amended as 
to require that the satisfactory evidence 
to be furnished by the voter to the 
judges of election that he has paid the poll 
tax assessed aginst him, if any, for the pre¬ 
ceding year, as contemplated and required 
by said article and section by said chapter, 
shall consist of the original poll tax receipt 
or a duly certified duplicate and copy of 
the same, properly certified by the trustee, 
or shall make an affidavit that he has paid 
his poll tax and that his receipt is lost or 
misplaced, which affidavit shall be filed 
witM the said judges of election. 

Section 2. Be it further enacted. That 
the words “assessed against him” in the 
twelfth line of said act are hereby made 
to contemplate and mean the poll tax for 
the year or years named in the act, due by 
the voter and to which he is made subject 
under the revenue laws of the state, wheth¬ 
er the name of the voter appears on the 
books of his county tax assessor or not. 

^^‘Ction 3. Be it further enacted. That 
any person voting or any judge of any elec¬ 
tion permitting any person to vote in the 
same without having first complied with 
the provision of Section 1 of this act, shall 
be guilty of misdemeanor, and on conviction 
thereof, shall be fined not less than fifty 
dollars, and imprisoned in the county jail 
or work house not exceeding ninety days, 
in the discretion of the court. 

Section 4. Be it further enacted. That 
all laws and parts of laws in conflict with 
this act be and the same are hereby re¬ 
pealed. 

The last act upon the subject is that of 
Sept. 18, 1891, which is as follows: 

Section 1. Be it enacted by the general 
assembly of the State of Tennessee. That 
Chapter 222, of the acts of the regular ses¬ 
sion, approved March 30, 1891. regulating 
the elective franchise in accordance with 
Article IV.. Section 1, of the constitution of 
the state, be so amended as to require that 
the satisfactory evidence to be furnished by 
the voter to the judges of the election 
whether general or special, whether nation¬ 
al. state, county or municipal, that he has 
paid the poll tax contemplated by the con¬ 
stitution, assessed against him. if any, for 
the year next preceding said election, shall 
consist of the original poll tax receipt, or a 
duly certifle<l duplicate and copy of same, or 
the duly authenticated certificate set out ia 
Section 8 when said tax has been paid to a 
constable and not to said trustee, properly 
certified by the trustee, or shall make affi¬ 
davit in writing and signed by the voter 
that he has paid his poll tax and that his re¬ 
ceipt is lost or misplaced, which affidavit 
shall be filed with the said judges and by 

them attached and made an exhibit to the 

returns of said election. 

Section 2. Be it further enacted. That 

in case the voter has lost or mislaid his 

poll tax receipt and seeks to cast his vote 
on an affidavit being made of such loss or 
mislaying as aforesaid, the following shall 
be the formula: (Here follows form of afli- 
davit.) 

And any one of the judges of said elec¬ 
tion is hereby authorized and empowered 
to administer said oath; provide<l. that a 
voter swearing falsely in said affidavit is 
thereby guilty of perjury, and on indictment 
and conviction shall be subject to all the 
pains and penalties thereof. 

Section 3. Be it further enacted. That 
it shall be the duty of the trustee, in case 
any legal voter has lost or mislaid his poll 
tax receipt heretofore issued, and who shall 








12 


THE MINORITY REPORT OF 


apply for a duplicate and copy thereof, to 
issue the same. Said duplicate shall be an 
exact copy of the original lost or mislaid, 
and upon the back of which said trustee 
shall make the following certificate: (Here 
follows form of certificate.) 

Section 4. Be it further enacted. That 
the words “assessed aginst him,” occurring 
in the first section of this act, are hereby 
made to contemplate and mean the poll tax 
due by the voter for the year next preceding 
the election in which the vote is to be 
cast, and to which he is made subject under 
the revenue laws of the state, whether the 
name of the voter appears on the books of 
his county trustee or not. 

Section o. Be it further enacted. That 
any person voting, or any judge of any 
election permitting, knowingly, any person 
to vote m the same vdthout first having 
complied with the provisions of Section 1 
of this act, shall be guilty of a misdemeanor, 
and, on conviction thereof, shall be fined not 
less than fifty ($50) dollars, and imprisoned 
in the county jail or work house ninety (90) 
days. 

Section 0. Be it further enacted, That 
any trustee or his deputy who shall issue 
any blank or bogus receipt for the poll tax 
herein before alluded to, or make a false 
certificate on any duplicate receipt, shall, 
for every such blank or bogus receipt is¬ 
sued as aforesaid, or false certificate made, 
be thereby guilty of a misdemeanor, and, 
on. conviction, fined fifty ($50) dollars, im¬ 
prisoned in the jail or work house of his 
county ninety (90) days, and disqualified for 
election or re-election; and any trustee re¬ 
fusing to give a duplicate copy of the poll 
tax receipt lost or mislaid as aforesaid, shall 
likewise be guilty of a misdemeanor and 
punished as in case of issuing blank or 
bogus receipts as aforesaid. 

Section 7. Be it further enacted. That 
the gi*and juries of this state are hereby 
given inquisitorial powers of offenses com¬ 
mitted under this act and the several circuit 
and criminal judges are required to ^ive 
this act specially in charge on the organiza¬ 
tion, of each grand jury in their respective 
courts. 

Section 8. Be it further enacted. That 
when any such poll tax shall have been paid 
to the constable and not to the trustee, said 
trustee, in giving to the voter the like cer¬ 
tificate of payment as contemplated in Sec¬ 
tion 3, instead of issuing to said applicant 
a copy of said receipt, shall issue the follow¬ 
ing certificate; (Here follows form of cer¬ 
tificate.) 

Provided, first, that the issuance of any 
bogus or false certificate in this section re¬ 
quired shall be punished as required by Sec¬ 
tion 6, and that any person voting on any 
such bogus or false certificate, or any judge 
knowingly permitting any such person to 
vote on such certificate, shall be punished 
as in Section 4. 

Section 9. Be it further enacted. That 
all laws or parts of laws in confiict with this 
act, be, and the same are hereby repealed, 
and that this act take effect from and after 
its passage, the public welfare requiring it. 

A. 

ITie acts of March and September,1891, 
are unconstitutional because they impose 
a qualification upon the right of voting 
prohibited by the constitution. These acts 
are not mere regulations to secure the 
purity of elections, but they impose a 
qualification upon the right of voting. 


Payne on Elections, Sec. 7. 

Rison vs. Fair, 24 Ark., lt>l. 

Cooley’s Const. Him. 94. 

Thomas vs. Owen, 4 Md., 189. 

Goetcheus vs. Matthewson, 61 N. Y., 
420. 

People vs. Conody, 73 N. C., 198. 

Page vs. Allen, 58 Pa. St., 338. 

Dills vs. Kennedy, 49 Wis., 71. 

State vs. Baker, 38 Wis., 71. 

Murphy vs. Ramsay, 114 U. S., 15. 

McCrary on Elections, Sec. 9. 

iMonroe vs. Collins, 17 Ohio St.^ 965. 

Patterson vs. Barlow, 69 Pa. St., 54. 

State vs. Adams, 2 Stewart (Ala.), 239. 

The constitution directs that satisfactory 
evidence shall be given the judges of the 
election that the voter had paid his poll 
tax for such preceding period as 

the legislature may prescribe. Now 

the act of 1890 was manifestly 

within the constitutional gi*ant of 
iwwer, because it followed the identi¬ 
cal language of the constitution and sim¬ 
ply declared that the judges of election 
should require satisfactory evidence that 
the voter had paid his poll tax, before 
allowing him to vote. 

The term “satisfactory evidence,” as 
used and employed in the constitution, 

had a fixed and well defined legal mean¬ 
ing, at the time of the adoption of the con¬ 
stitution, and it will of course be presum¬ 
ed that the term was employed and used 
with reference to its established meaning. 

Thompson on Trials, Vol. 2, Sect. 2,404 
says: 

“Dr. Greeuleaf, not speaking specially 
with reference to criminal evidence, uses 
the following language: ‘By satisfactory evi¬ 
dence, which is sometimes called sufficient 
evidence, it is intended that amount of proof 
which ordinarily satisfies an unprejudiced 
mind, beyond a reasonable doubt. The cir¬ 
cumstances which will {imouut to this degree 
of proof can never be previously defined; the 
only legal test of which they are susceptible 
is their sufficiency to satisfy the mind and con¬ 
science of a common man; and so convince 
him that he would venture to act upon the 
conviction in matters of the highest concern 
and importance to his own interests. * * 

The reader should be cautioned, however, 
that the expression ‘satisfactory evidence,’ 
and ‘suflicient evidence,’ are not the linguis¬ 
tic equivalent of the expression ‘evidence 
which satisfies the mind beyond a reason¬ 
able doubt,’ and cannot be properly substi¬ 
tuted for it in explaining its meaning to a 
jury.” 

See also 1 Greenl. Ev. sec. 2. 

These acts of 1891 undertake to add 
to the constitutional restriction of the 
right to vote, by placing upon these terms 
a construetioii not warranted, which im¬ 
poses a qualification other than that au¬ 
thorized by the constitution, and beyond 
the proper and legal meanirfg of the 
terms therein employed. 

B. 

The acts of 1891 are in violation of 
Art. 11, Sec. 2 of the constitution, provi¬ 
ding that no persons belonging to one de¬ 
partment of the government shall exer- 





INVESTIGATION OF GUBERNATORIAL CONTP:ST. 


13 


else powers properly belon^ng to another. 

Jiidgeis of election are judicial officers 
and belong to the judicial department of 
the government. 

See Rails vs. Potts, 8 Hump. 225. Flem¬ 
ing vs. 'Coruns, 8 S. E. R., 237 (W. Va.) 

The constitution. Art. 4, Sec. 1, says: 
“There shall be no qualification attached 
to the right of suffrage, except that each 
voter shall give to the judges of election 
satisfactory evidence that he has paid the 
poll taxes assessed against him, etc., etc. 

It is competent for the legislature to 
enact rules of evidence, and say what 
shall constitute prima facie evidence, 
but it has no right to prescribe to or for 
any court or judicial officer what quantum 
of evidence shall be sufficient to amount 
to satisfactory proof of the point in issue. 

The legislature has no right to prescribe 
a rule of conclusive evidence; by the acts 
of 1801 it has undertaken to say that a 
poll tax receipt shall be oonelusivo, and 
the exclusive evidence to satisfy the elec¬ 
tion judges that the voter had paid his 
poll taxes. 

The constitutional qualifications of elec¬ 
tors cannot be altered by statute, un¬ 
less the constitution itself authorize such 
alteration, because an expression in the 
constitution of the conditions upon which 
a right may be exercised, or a penalty im¬ 
post, excludes by implication any change 
ill such conditions by statuary enactment. 

Paine on Elections, Sec. 7, and authori¬ 
ties cited. 

When the constitution defines the cir¬ 
cumstances under which a right may be 
exorcised, the specification is an implied 
prohibition against legislative interfer¬ 
ence to add to the condition. 

Cooley Const. Lim. 79. 

The authority of the legislature to say 
what shall or shall not be received in evi¬ 
dence, and to say “which party shall as¬ 
sume the burden of proof in civil cases, 
is practically unrestricted, so long as its 
regulations are impartial and uniform, 
but it has no power to establish rules 
which, under pretense of regulating the 
presentation of evidence, go so far as to 
altogether preclude a party from exhibi¬ 
ting his rights.” 

Cooley’s Coist. Lim. p. 368. 

This authority is quoted by Judge Lur- 
ton, in the case of Railroad vs. Crider, 7 
Pickle, 498-499. The court in that case 
held the railroad fence law constitutional; 
the attack on it proceeded upon the idea 
that it made the appraisement mentioned 
conclusive evidence of the value of the 
stock killed; the reason assigned for hold¬ 
ing the act constitutional was that it 
only made the appraisement prima facie 
evidence, and left the parties free to pro¬ 
duce any other competent evidence on the 
question of value. The learned Judge 
said: 

“If the valuation fixed by the board 
of appraisers was made conclusive evi¬ 


dence against the company, the act would 
be subject to severe criticism.” 

The non-payment of the poll tax is the 
thing which may disqualify a voter under 
the constitution. The acts under consid¬ 
eration operate to deprive a voter of 
establishing his right to vote, unless he 
produce the prescribed evidence, a poll 
tax receipt, or a duplicate, or an affidavit 
of the loss of the original. The original 
receipt is made the primary evidence; 
in its absence a duplicate, or an affidavit 
of loss of the original may he used. If 
the voter had in fact paid his poll tax for 
the prescribed time, and did not take a 
receipt, or if the trustee refused to give 
him a receipt, he cannot vote, notwith¬ 
standing he may be able to show by the 
most convincing proofs that he had paid 
the taxes. It is not provided that in the 
absence of a receipt, the voter may vote 
on an affidavit that he had paid his tax, 
but the affidavit must be that his_ receipt 
was lost or misplaced. The receipt, not 
the payment, is made the qualification. 

If a voter had paid his tax and taken a 
receipt, which he entrusted to a friend 
for safe keeping, and which his friend re¬ 
fused to return to him, or if the friend was 
absent temporarily and had the receipt 
with him, he could not vote, even though 
one of the election judges was a witness 
to the fact that he had paid. 

So, under the pretense of regulating the 
presentation of evidence of the payment 
of poll taxes, these acts may and in many 
cases will preclude a party who has paid 
his taxes and is entitled to vote, from ex¬ 
hibiting his rights to the election judges. 

Again, these acts undertake to make a 
poll tax receipt conclusive evidence of the 
payment of the tax. The act of 1885, 
ch. 68, was held unconstitutional by the 
Federal Court, for the reason above sta¬ 
ted. 

There are many illustrations of the rule 
that one department of the government 
has no right to exercise a power belonging 
to another. The act requiring judges of 
the Supreme Court to give reasons for 
their decisions in writing has always re¬ 
mained a dead letter. The statutes pro¬ 
viding that assignments of error in an ap¬ 
pellate court shall not be required, was 
set at nought by our Supreme Court; and 
the act prescribing that where the judges 
of the Supreme Court were equally divi¬ 
ded, a judgment of affirmance should be 
entered, was held unconstitutional. 

So an act of assembly construing a for¬ 
mer act, was held unconstitutional. See 
5 Hump. 165. 

An act directing the court to enter a par¬ 
ticular kind of judgment in certain cases 
was held to be void. 

The acts of 1891, in substance and ef¬ 
fect, direct what construction shall be 
placed by the election judges upon the 
constitution and the act of 1890. 

The constitution requires the voter to 
produce satisfactory evidence that he has 






14 


THE MINORITY REPORT OF 


paid his poll taxes for such preceding per¬ 
iod as the legislature may prescribe; the 
act of 1890 merely prescribes the preced¬ 
ing period for which the to ter musit show 
by satisfactory evidence that he has paid 
bis taxes, and then come the acts of 
1891, andy in legal effect say that Art. IV., 
Sec. 1 of the constitution, and chapter 26 
of the extra session of 1880, shall be so 
construed that the satisfactory evidence 
therein mentioned shall be taken to mean 
an original poll tax receipt, or duplicate 
thereof to be issued by the trustee, or an 
affidavit of the voter showing inter alia 
that he has lost or misplaced his receipt. 

C. 

Tlie second section of the act of March, 
1881, is, by its express provisions, a di¬ 
rection of election judges how they shall 
construe the constitution and the said act 
of the extra session of 1890, for it says: 

“That the words ‘assessed against him’ 
in the twelfth line of said act (these pre¬ 
cise words being also found in the constitu¬ 
tional limitation on the subject) are hereby 
made to contemplate and mean the poll 
tax for the year or years named in the 
act, due by the voter and to which he is 
made subject under the revenue laws of 
this state, whether the name of the voter 
appears on the books of his county asses¬ 
sor or not.” Section 4 of the act of Sept. 
1891, is in the same language. This sec¬ 
tion does not profess to amend the former 
act, but declares what meaning shall be 
attached to certain terms therein employ¬ 
ed. In other words, it directs the depart¬ 
ment of government to which the enforce¬ 
ment of the law! is entrusted, what con¬ 
struction it shall put upon the act. 

Speaking to this point, our supreme 
court says: 

“With the highest respect for the legis¬ 
lature a® a co-ordinate branch of the gov¬ 
ernment, we are constrained to say that we 
regard it a® clearly an unconstitutional en¬ 
actment, and, whenever that is the case, 
it becomes the solemn duty of the judiciary 
so to declare it, as the constitution is the 
paramount law. The argument on this point 
may be stated in a few words: 

“Under the constitution the power® of the 
government are divided into three distinct 
departments—the legislative, the executive 
and the judicial. Each department is pro¬ 
hibited from exercising any of the powers 
properly belonging to either of the others. 
It is upon this division of the powers that 
the security of the citizen, as well as limi¬ 
tations upon power contained in the consti¬ 
tution, mainly depend for their preservation. 
To the legislature belongs the power of 
making sucdi laws, within the limits of the 
constitution, as the policy of society and 
its varying interests may seem to require. 
But, after their enactment, it is then, the 
province of the judiciary to ascertain their 
meaning and determine upon their construc¬ 
tion. Any other doctrine would destroy 
the checks contained in the constitution 
against the abuse of power, and tend to 
the concentration of all power in the single 
department of government. 

“It is unnecessary to dwell on this point 
further than merely to say, the legislature 
of 1835 enact a law in reference to the col¬ 


lection of revenue; that of 1839-40, without 
repealing that law or enacting a different 
one, which it w^as perfectly competent for 
them to do, undertake to say what is the 
meaning of the former law, and decide upon 
its construction. This, we think, was be¬ 
yond their power.’’ 

Governor v. Porter, 5 Hump., 165. 

The second section of the act of March, 
1891, and the fourth section of the act of 
September, 1891, manifestly add a quali¬ 
fication to the right of suffrage, in addi¬ 
tion to the qualification prescribed in the 
constitution, in the face of the prohibition 
that there shall be no qualification to the 
right of suffrage, except that the voter 
shall give to the election judges satisfac¬ 
tory evidence that he has paid the poll 
taxes assessed against him for such 
preceding period as the legislature may 
prescribe. 

The term “assessed” has a plain legal 
meaning. Under our system of revenue 
laws, we formerly had for every district 
a tax assessor, and now a county assessor, 
whose duty it is to assess against each in¬ 
habitant, between the ages of 21 and 50, 
a poll tax. The constitution declares that 
when such tax is assessed against a voter, 
he may be required when he comes to 
vote, to give the judges of election, where 
he offers to vote, satisfactory evidence 
that he has paid the taxes for such preced¬ 
ing period as the legislature may have 
prescribed. It contains no warrant for 
the legislature to say that he may be re¬ 
quired to give evidence that the poll tax 
has been paid, when none had been as¬ 
sessed against him. The legislature sim¬ 
ply went a step beyond the power con¬ 
ferred on it by the constitution, and w^e 
think the act is void for that reason. 

D. 

Again, we think the act of March, 1891, 
is unconstitutional and void, because It 
embraces more than one subject, and the 
subject is not sufficiently stated or indi¬ 
cated by the title. It purports to be an 
act to amend a former act, the title to 
which it quotes in the amendatory act. 
After undertaking to amend or construe 
the former act, which was an act merely 
prescribing that voters should be required 
to furnish to judges of election satisfac¬ 
tory evidence that they had paid the poll 
taxes assessed against them for the year 
next preceding the election, it proceeds to 
create a new criminal offense, namely, to 
make it a misdemeanor for a voter to vote 
without having first procured a poll tax 
receipt and exhibited it to the judges, and 
also makes it a misdemeanor for the 
judges of election to permit a voter to 
vote without the exhibition of his poll tax 
receipt. 

Murphy vs. State. 9 Lea, 873; Raglo 
vs. State, 86 Tennessee, 272. 

An act relating to a subject not em¬ 
braced in its title is wholly void. Ibid. 

E. 

Our view that the law requiring cer¬ 
tain specified evidence of the payment of 






INVESTIGATION OF GUBEKNATOIUAL CONTEST. 


15 


poll tax is nugatory and that it is so con¬ 
sidered by the judges and the people all 
over the state, is strengthened by the fact 
that since the passage of the act of 1891, 
three important general elections and num¬ 
erous special elections have been held; 
and, that although it is notorious that at 
all of said elections there was a general 
non-obserVance of its provisions, in most 
of the counties of the state, no prosecu¬ 
tions have been had for alleged violations 
of the law for mere non-observance of its 
provisions requiring certain specific evi¬ 
dence of payment. When a qualified vot¬ 
er has paid his tax, the fact that he did 
not produce a receipt was a mere tech¬ 
nicality. The present contestant, Peter 
Turney, has approved our position by ac¬ 
cepting and holding the office of Goverenor 
for the^term of two years which expired 
Jan, 15, 1895, well knowing that at the 
election of 1892, the non-observance of 
provisions requiring the production of tax 
receipts to the judges of election, was al¬ 
most universal, and well knowing that 
poll taxes were not in fact so generally 
paid for the year 1891 as they were for the 
year 1893. He accepted his election and 
enjoyed his office without question or com¬ 
plaint. 

The acts of 1891 require, among other 
things, that their provisions shall be given 
in charge by the circuit and criminal 
judges to the grand juries at each term 
of their courts, and the grand juries are 
given inquisitorial powers. The Hon. E. 
D. Patterson, who has presided over the 
courts of the Ninth circuit ever since 
1886, who was re-elected at the August 
election, 1894, for another term of eight 
years, and who was the choice of the dem¬ 
ocrats of said circuit, for re-election, and 
who is well and favorably known as a 
sound lawyer and able judge, in his re¬ 
cent charge to the grand jurj" of Law¬ 
rence county, said: 

“The spirit of the iaw and the constitu¬ 
tion is that a voter liable for poll tax shall 
pay the same before he votes, but an in¬ 
dictment based upon the failure of the voter 
to exhibit his poll tax receipt to the judges 
or give the evidence of payment set out in 
the election law of 1891, would be insuffi¬ 
cient and must fail if the proof should show 
that the require<l tax had, in fact, been 
paid, because that part of said election law 
which undertakes to prescribe what shall 
be the only satisfactory evidence of pay¬ 
ment of the required tax is unconstitutional.” 

To sustain the act of 1891 the majority 
cite at length from the report of a con¬ 
gressional committee in the Thrasher- 
Enloe case. The question of the con¬ 
stitutionality of the act never did come 
up and never was discussed in that case. 
The result in that case was not, as might 
be understood brom a reading of the ma¬ 
jority report, reached by applying the 
rule which in the present case has been 
adopted by the majority. Enloe, the 
democrat, was seated and not Thrasher, 
the republican, and the concession spoken 
of by the majority as having been made 
to tlie republican candidate arising out of 


the application of the ruling on the poll 
tax law did not aid the latter. Congress 
simply seated Enloe, the democrat, and 
never did pass upon and had no occasion 
to pass upon the poll tax law require¬ 
ments. 

The majority also cite the unreported 
case of Bayless against the state, where 
the supreme court quashed an indictment 
for perjury upon a false affidavit of the 
loss of a poll tax receipt made before a 
justice of the peace. The court in short 
order threw out the indictment as bad, 
because the act says an indictment will 
lie for perjury where one swears falsely 
before an election judge, not before a 
justice of the peace. The question of the 
validity of the act was never reached by 
the court. The indictment was bad upon 
another vital ground and of course the 
court went no further. 

V. 

The Functions nnd Powers of the 
Joint Assembly. 

The act of 1891, being, in our opinion, 
void for want of conformity to the con¬ 
stitution of the state in the respects above 
set out, the question recurs. What is the 
prerogative and duty of this joint as¬ 
sembly in the premises? 

We concede that one legislature sitting 
in its legislative capacity has no power 
to declare unconstitutional an act of its 
predecessor. The remedy in such cases 
is to repeal the obnoxious statute. But 
the two houses of the general assembly 
are not sitting in a legislative capacity; 
we are here to exercise a high and im¬ 
portant judicial function; we are the 
constitutional judges of the controversy 
now pending as a judicial question, be¬ 
tween two gentlemen, each claiming to 
have been elected to the office of Gov¬ 
ernor of this commonwealth. We are 
neither acting in a political nor in a leg¬ 
islative capacity. We are pro hac vice 
a part of the judiciary of this state. We 
are upon all questions of law and fact 
the court of dernier resort. We consti¬ 
tute the supreme tribunal for the trial 
of this< great controversy. There is no 
tribunal which can exercise any appellate 
or revisory power over the judgment 
which we may render, either upon the 
law or the facts arising in the cause, 
we may render, either upon the law or 
the facts arising in the cause., 

The constitution says: 

“Contested elections for Governor shall 
be determined by both houses of the gen¬ 
eral assembly in such manner as shall be 
prescribed by law.” Article 3, section 2. 

The action of the two houses in de¬ 
ciding upon this contest is absolutely 
judicial in its nature, as much so, to all 
intents and purposes, as if the constitu¬ 
tion had provided that contested elec¬ 
tions for Governor should be tried by the 
supreme court. 







16 


THE MINOEITY KEPOKT OF 


Cushing’s Legislative Assemblies, Ed. 
1874, Ch. 4. p. 255, is as follows: 

Section 640. “The powers incidental to 
a legislative assembly are such as are 
necessary to enable it to perform its 
principal or legislative and administra¬ 
tive functions. These powers are of two 
kinds, the inquisitorial and the judicial.” 

Section 642. “The other incidental pow¬ 
ers of legislative assemblies, being more 
strictly analogous to those exercised by 
judicial tribunals, constitute its judicial 
powers as distinguished from its legisla¬ 
tive; and accordingly, in the exercise of 
these functions, a legislative assembly 
is considered as a court, and the journal 
of its proceedings as a record.” 

Section 643. “The judicial powders ex¬ 
ercised by a legislative assembly as in¬ 
cidental to or in aid of its general func¬ 
tions, must be carefully distinguished 
from those which it exercises as a branch 
of its legislative duties,” 

Section 649. “The jurisdiction of a 
legislative assembly acting judicially is 
necessarily final. That is, its proceed¬ 
ings cannot be revised nor its judgment 
suspended by any other court or tribu¬ 
nal. 

Wirts vs. Rogers, 28 Atlantic Rep., 735 
(New Jersey. McCrary Elect., page 394. 

And from Cooley we quote: In deter¬ 
mining questions concerning contested 
seats the house exercises judicial power, 
but generally in accordance with a course 
of practice which has sprung up from 
precedents. Const. Lim., 158. 

They are to decide the question in¬ 
volved, determine who was elected Gov¬ 
ernor, keep a journal of their proceed¬ 
ings, etc. 

No jurisdiction whatever is conferred 
upon any other tribunal in a contest in¬ 
volving the title to the ofiSce of Govern¬ 
or. The courts, it would seem, have no 
jurisdiction by a proceeding in the na¬ 
ture of quo warranto, mandamus or other 
form of procedure over a case involving 
a contest like this. 

If a question of constitutional law 
arises in a contest over the office of Gov¬ 
ernor. the two houses of the general as¬ 
sembly, from the necessity of the case, 
must be the final arbiters of the question. 
As applied to the office of Governor, the 
question can never arise before any of 
the ordinary judicial tribunals, because 
they cannot exercise any jurisdiction 
over the subject matter. Can it be said 
that we must sit by and see the Gov¬ 
ernor-elect deprived of his office under 
an unconstitutional law because that law 
has not heretofore been declared uncon¬ 
stitutional by the supreme court: 

We think that this joint assembly, con¬ 
stituted a court of last resort to try this 
issue, manifestly has the right and power 
to pass upon and decide the constitution¬ 
ality of the act under consideration, and 
it is our solemn duty, emphasized by the 
oaths we have taken, to declare the act 


void, if in our judgment it violates the 
fundamental law of the state. 

The Contestaut Turney, while occupy¬ 
ing a seat upon the bench of the supreme 
court of this state, in delivering the opin¬ 
ion in Lynn vs. Polk, 8’ Lea, 139-131, thus 
spoke of how an unconstitutional law is 
to be regarded: 

“If the mandates of the constitution are 
to be observed, there is not, nor can there 
be such a thing as an officer of the state 
acting by authority of the state in pursu¬ 
ance of an unconstitutional law. If the offi¬ 
cer or his office are created by the uncon¬ 
stitutional exercise of power or the exercise 
of power not conferred by the constitution, 
the fii-et is a violation of power, the second 
its usm-pation. A law unconstitutional is 
void, and confers neither right nor author¬ 
ity. Officers created by it are wrong-doers 
whenever they attempt its execution. 

“I am compelled to confess my utter in¬ 
competency to comprehend the reasoning 
upon which it has been holden that uncon¬ 
stitutional enactments may be, or must be 
treated as authority of the state. To my 
mind, it is the climax of absurdity.” 

This is the universal doetriue. 

By eminent text writers, supported by 
the highest authority it is thus stated: 

“An uncoT stitutional act is not a law; 
it confers no rights, it imposes no duties, 
it affords no protection, it creates no office; 
it is, in legal contemplation, as inoperative 
as though it had never been passed.”— 
Am. and Eng. Ency., 3 Voh, 678. 

VI. 

Nature of tlie Rlg-lit of Suffrag'e. 

While the right of suffrage does not be¬ 
long to the class of rights, like the right 
of lil'e, liberty, and property,_ kuvwn as 
inalienable rights, which exi'^ in favor of 
every person, as an attribute of manhood, 
and which do not depend for their origin 
and existence upon the constitution and 
laws, but which are above and beyond all 
constitution and laws; whiles this right is 
one Avhich depends for its existence and 
enjoyment upon the constitution of the 
state, and while the state may by its con¬ 
stitution grant or withhold the right to or 
from any class of its citizenship that it 
may choose, subject only to the prohibi¬ 
tion of the federal constitution, still it is 
a right of the highest value and concern 
to the citizen. Chief .Justice Waite, in a 
famous case, said: 

“It is the highest right of the citizen, 
because it is preseiU'ative of all other 
rights.” 

It is the only resource in the hands of 
the people to protect and preserve all their 
other rights and privileges from encroach¬ 
ment by the rich and powerful. Hence it 
is a matter of the supremest importance 
to the citizens of this commonw^ealth that 
this, their great constitutional privilege, 
be not taken from them, or its results, 
as expressed at the ballot box, be not an¬ 
nulled upon any pretext whatever. This 
great right of the people of the state is 
as much involved in this controversy as 
is the right of these contesting parties 






INVESTIGATION OF GUBERNATOKIAL CONTEST. 


17 


to the high office for which they are con¬ 
tending. It is a matter of the greatest 
importance to determine in what capacity 
the legislature is to act in determining 
the controversy. 

Is this a mere political body, assembled 
to hear and determine a political contro¬ 
versy, upon the lines suggested by our 
party fealty? Or do we assemble in the 
capacity of judges to pronounce a judicial 
award, upon the principles of right and 
justice to the people, and to the litigants, 
and in accordance with our oaths and our 
judgment, upon the constitution, the law 
and the facts bearing on the case? 

The contest act says in its 12th section: 

“The memhers of both houses shall then 
assemble and consider the report and deter¬ 
mine the election. They shall decide the 
uestions involved, pass upon the objections, 
etermine the contest, and determine what 
person received the highest number of legal 
votes, and declare and detei-mine who shall 
be elected Governor of Tennessee.” 

It appears to be plain from this act, as 
well as from the consdtutiimal provision 
on the subject, that the function of the 
general assembly is a judicial one. They 
are to decide the questions involved, the 
constitutional and legal questions, as well 
as those relating to the facts. They are to 
say what is a legal vote and what is an 
illegal one; they are to determine who has 
been elected Governor of Tennessee. They 
have as much power to pass upon and 
determine the constitutionality of an act 
of the legislature, upon which the decis¬ 
ion of any question in the case turns, as 
they have to decide the questions of fact 
involved. This case involves the right of 
the people to enjoy their suffrages; it in¬ 
volves the preservation of their suffrage 
from destruction upon frivolous pretexts. 

The bill of rights at section 5 declares: 

“That elections shall be free and equal 
and the right of suffrage, as herein 
declared, shall never be deni^ to any person 
entitled thereto, except upon conviction, by 
a jury, of some infamous crime, previously 
ascertained and declared by law, and judg¬ 
ment thereon by a court of competent juris¬ 
diction.” 

The framers of the constitution appre¬ 
hended that some men might at some 
time put forward the claim that the bill 
of rights was not as sacred as the body 
of the constitution, and hence by the sev¬ 
enteenth section to the miscellaneous pro¬ 
visions found in Article 2, they declared: 

“The declaration of rights heretofore pre¬ 
fixed, is declared to be a part of the con¬ 
stitution of this state, and shall never be 
violated on any pretense whatever. And 
to guard against the transgression of the 
high powers we have delegated, we declare 
that everything in the bill of rights con¬ 
tained is excepted oiit of the general pow¬ 
ers of government, and shall forever remain 
inviolate.” 

Each member of the senate and house of 
representatives is required to take an oath 
to support the constitution of the United 
States, and of this state, and also the fol¬ 
lowing oath: 


“I do solemnly swear (or affirm) that, os 
a member of this general assembly, I will, 
in all appointments, vote without favor, af¬ 
fection, partiality or prejudice; and that I 
will not propose or assent to any bill, vote 
or resolution, which shall appear to me in¬ 
jurious to the people, or consent to any 
act or thing whatever that shall have a 
tendency to lessen or abridge their rights 
and privileges as declared by the constitu¬ 
tion of this state.” 

In view of the duties made incumbent 
upon the general assembly by the contest 
act of 3895, can the members shut their 
eyes to the fact that they are to sit as 
judges upon rights and privileges declared 
in and guarded by the constitution? Can 
they forget that they took a solemn oath 
to support the constitution, that they 
would not propose or assent to any vote 
injurious to the people, or consent to any 
act or thing whatever that would have 
a tendency to lessen or abridge their rights 
or privileges? 

From the necessity of the case, the vote 
of the members on this contest involves a 
decision by them of the question of the 
constitutionality of the poll tax receipt 
law, and they must decide it upon their 
oaths. Shall it be said that they, fresh 
from their oaths to support the constitu¬ 
tion, must v^ote that when an elector, oth¬ 
erwise qualified, voted without showing 
his poll tax receipt, that his vote is to be 
rejected because an act of the assembly, 
which in their hearts and enlightened 
judgments they believe is unconstitutional, 
has said that the voter must produce his 
poll tax receipt when he votes? They 
have never taken! an oath to support an 
unconstitutional law. 

We are mindful of the rule of law that 
where the judicial department of the gov¬ 
ernment has construed a law, it is the 
duty of the other departments to follow 
the construction put upon the law by the 
courts, but, in the language of the late 
Justice Miller, “It is the duty of each 
member of the legislature to make that 
construction himself, whenever, in the ab¬ 
sence of judicial construction, he is called 
upon to act, within the sphere of his duty.” 

That eminent jurist, in his lectures on 
the constitution, pages 98 and 99, says: 

“It is certainly the special function of the 
courts to construe the constitution, in a ju¬ 
dicial proceeding, with parties properly be¬ 
fore it, but it is equally the duty of each 
member of congress, as well as the execu¬ 
tive, to make that construction himself, 
whenever he is called upon to act within the 
Sphere of his duty upon any matter involv¬ 
ing a question of constitutional law.” 

“It is also true that such member (or ex¬ 
ecutive) is bound to consider that in the ex¬ 
ecution of the law as between parties, all 
other branches of the government must 
yield to the interpretation declared by the 
courts; yet, when the question is addressed 
to his conscience as to whether he can vote 
for a proposed measure (or sign a certain 
bill which is presented to him), IT IS FOR 
HIM TO DECIDE, WITH THE BEST 
LIGHTS BEFORE HIM, WHETHER THE 
I^IATTER IS WITHIN THE CONSTITU¬ 
TIONAL POWER OP THE BODY OF 
WHICH HE IS A MEMBER.” 







18 


THE MINORITY REPORT OF 


vn. 

Laws to Secure Purity of tlie Ballot. 

The validity of the poll tax receipt law 
is sought to be maintained under the last 
clause of Art. 4, Sec. I., which declares 
that the general assembly shall have pow¬ 
er to pass laws to secure the frp<<iom of 
elections, and the purity of the ballo<>. 

To this contention tliere are two con¬ 
clusive answers; 

1. The tax receipt ad imposes qualifica¬ 
tions upon the exercise of the elective 
franchise forbidded by the constitution. 
It is not competent for the legislature, un¬ 
der the pretense of securing the freedom 
of elections and the purity of the ballot, 
to impose qualifications to and restrictions 
upon the right of voting, prohibited by 
the constitution. The le^slature may reg¬ 
ulate the manner of voting, but may not 
impose un-warranted qualifications upon 
the right itself, as they attempted to do 
by these acts. 

2. The acts themselves w’^ere not de¬ 
signed to secure the freedom of elections 
and the purity of the ballot, and it can 
never have that effect. It has opened 
the doors to more fraud and corruption in 
elections than any laws ever enacted in 
this state. It has put it into the power 
of unscrupulous persons to buy the votes 
of the people who are unable or unwilling 
to pay their poll taxes. One receipt is 
often made to do duty many times, and 
for many different persons in the same 
election, thus working a fraud upon the 
revenues of the counties. High officials 
in good counties have used this law for 
the perpetration of the grossest frauds up¬ 
on the right of free elections and pure 
ballots. It has made it necessary for can¬ 
didates and their coadjutors to purchase 
receipts in large numbers, and to use them 
in bribing voters to support them and their 
friends. So great has been the tendency 
to corruption of the ballot since this law 
was passed, that many persons, before 
considered honest and patriotic, persons 
who are fully able to pay their own taxes, 
will not vote unless some candidate pre¬ 
sents them with the necessary tax re¬ 
ceipts, and they of course always agree 
to vote for the man whose money has paid 
their taxes. 

It is an insidious and dangerous enemy 
to free elections, and corrupts the purity 
of the ballot box. It is a misnomer to 
call this a law to secure freedom and pur¬ 
ity in elections. You could just as appro¬ 
priately call a law to legalize bribery in 
elections one to secure free and pure elec¬ 
tions. Already the public journals of this 
state have recorded an awful tragedy and 
suicide as the result of these corrupt in¬ 
fluences which have been at work in pop¬ 
ular elections, under the operation of this 
poll tax receipt law. 

vin. 

Poll Tax Provision Intended to Se¬ 
cure Revenue for Seliool Purposes. 

We think the prime object of the con¬ 


stitutional provision creating the poll tax 
limitation or qualification upon the right 
to vote, was to require all persons to con¬ 
tribute to that part of the revenue which 
was set apart and dedicated to the com¬ 
mon schools, and hence legislation should 
concern itself more in securing the pay¬ 
ment of the tax, than in the matter of the 
evidence of its payment. 

The contestant, Turney, in only one in¬ 
stance complained of the non-payment of 
poll taxes; the burden of his complaint 
was that poll tax receipts were not re¬ 
quired by the election judges to be pro- 
ducfd at the time the voters voted. The 
investigation of the committee in Fast 
Tennessee was confined to that one sub¬ 
ject, and in all the counties of East Ten¬ 
nessee the contestee, Evans, offered to 
prove and sought opportunity to prove, 
that the poll taxes had been in fact paid. 
The sub-con mittee shut the door of inves¬ 
tigation to this inquiry. As to each of 
the cf>uctles to the vote of which the oon- 
testee, Evans, objected, he presented an 
objection that the poll taxes had not been 
paid; he sought opportunity to make goiod 
his charges by proof, but the door of in¬ 
vestigation was closed on him. 

It is charged in Contestee Evans’ peti¬ 
tion that more poll tax revenue was col¬ 
lected for the year 1893, than had ever 
been collected in any previous year of the 
history of the state. Tliis averment is not 
denied, and, therefore, according to an 
express provision of the contest act, is 
to be taken as admitted. 

Now is this general assembly prepared 
to say that votes cast for Contestee Ev¬ 
ans by parties who had paid their taxes, 
are fraudulent and illegal merely because 
the election judges failed to demand the 
production of the poll tax receipts? 

Are they prepared to say that the con¬ 
testee, Evans, has been accorded a full 
and fair investigation when he was denied 
the right of proving in the several coun¬ 
ties objected to by him that the taxes 
had not in fact been paid? 

The investigation was very much re¬ 
stricted and limited as to the territory 
embraced within its scope, but enough 
was shown to enable us to state with cer¬ 
tainty that the method of voting without 
the production of poll tax receipts was not 
peculiar to republican localities, or to re¬ 
publican voters. The same conditions ex¬ 
isted in every portion of the state alike 
in this matter. 

In sections of the state, where, from the 
returns, republicans do not abound to any 
large extent, and where the voice of the 
republican orator is never heard, people, 
by common consent of voters and election 
officers, voted without showing poll tax 
receipts. No candid man will deny the 
truth of this statement, nor can it be de¬ 
nied that if the sections of the state as 
to which Contestee Evans filed objections 
had been investigated with the same ener- 
gj’- and desire on the part of the committee 






INVESTIGATION OF GUBERNATORIAL CONTEST. 


19 


to find irregularities as tvas displayed in 
the coimties objected to by contestant, 
it would have resulted in showing a much 
greater loss to Contestant Turney, upon 
his interpretation of the law than to Con- 
testee Evans, 

As to the voting precincts where many 
of the members of the general assembly 
voted in the election, it is clearly shown 
that poll tax receipts were not demanded 
or shown, and it is a fact well known that 
some distinguished members of this as¬ 
sembly, within the poll tax paying age, 
voted without showing their poll tax re¬ 
ceipts or duplicate of the originals or fil¬ 
ing affidavits. All the members derive 
their title from the very same elections 
involved in this controversy. Now are we 
to say that these distinguished members 
of this assembly committed a fraud upon 
the laws and revenues of this state, when 
they voted without showing their tax re¬ 
ceipts ? Shall we by our vote impugn the 
title of members of this assembly to the 
offices they are now holding: 

The position taken by Contestee Evans 
in his answer on this question is as fol¬ 
lows: 

“Oontestee Evans protests against Con¬ 
testant Turney’s construction of the poll 
tax laws and says, that the action of the 
judges of election in allowing a person to 
vote, is prima facie evidence that he was 
legally entitled to vote, and such vote can¬ 
not be declared illegal and thrown out, ex¬ 
cept ui)on evidence showing that, as a mat¬ 
ter of fact, the voter had not paid his poll 
tax. A mere shovving that the judges re¬ 
ceived the vote without requiring a certain 
kind of evidence of payment of poll tax 
would simply show that the fudges were 
derelict in not observing the statute pre¬ 
scribing the sort of evidence upon which 
they should act; but this course on their 
part (even if the statute was constitutional 
and binding upon them) could not and 
should not invalidate and render illegal the 
vote of a person constitutionally and legally 
entitled to vote. To throw out or reject a 
vote in a contested election suit, it must be 
shown that the person casting it was not, 
in fact, a legal voter. The failure of the 
judges to require a particular kind of evi¬ 
dence of the fact of poll tax payment could 
not and does not alter the fact that the 
voter had a legal right to vote; otherwise, 
the negligent or willful omission of the 
judges to call for the statutory evidence 
would disfranchise the voter or invalidate 
his vote if cast; a proposition too monstrous 
to be true.” 

In this exposition of the law we con¬ 
cur. In our opinion the legislature never 
intended and the constitution does not 
permit that the rights and privileges of 
the elective franchise should be restrict¬ 
ed and voters be disfranchised simply 
because the judges of election did not 
require the production of certain speci¬ 
fied evidence of payment of the tax, but 
rested satisfied with obeying the consti¬ 
tutional provision that “satisfactory evi¬ 
dence’’ shall be given to the judges. 

IX. 

Tlie Record. 

The printed record of the proof, as re¬ 


ported to the general assembly, sets out 
at many places exceptions taken by coun¬ 
sel for the contestee to the rulings of the 
sub-committees at the time evidence was 
taken, and also numerous requests for 
witnesses which were refused. To such 
rulings, exceptions, requests and refusals 
as appear in the record we call attention 
without setting them out in detail. But 
it deserves to be noticed that many ma¬ 
terial and important exceptions, many re¬ 
quests for material witnesses with a 
statement of what was expected to be 
proved by them, and many other impor¬ 
tant matters, all of which form part of the 
record, have not been printed. We can¬ 
not undertake to enumerate all of these 
omissions, but will state that in the 
districts where there was investigation, 
upon proof being made by Contestant 
Turney that the judges of election did 
not require the statutory evidence of the 
payment of poll taxes, request was made 
for witnesses to prove or proof was act¬ 
ually offered by Contestee Evans that 
voters had in fact paid their poll taxes. 

X. 

Conclusion. 

That great writer on constitutional law, 
Judge Cooley, says; 

“An election honestly conducted under the 
forms of law, ought generally to stand, not¬ 
withstanding individual electors have been 
deprived of their votes, or unqualified vot¬ 
ers have been allowed to participate. In¬ 
dividuals may suffer wrong in such cases, 
and a candidate who was the real choice of 
the people may sometimes be deprived of 
his election; but, as it is generally impos¬ 
sible to arrive at any greater certainty of 
result, by oral evidence, public policy is 
best subserved by allowing the election to 
stand and trusting to a strict enforcement 
of the criminal laws for greater security 
against like irregularities and wrongs in 
the future.” 

Cooley, 782. 

So far as the charges of Contestant Tur¬ 
ney go, they stand almost alone upon al¬ 
leged violation of the poll tax law in the 
non-production of statutory evidence, 
which is merely technical, not affecting 
the actual qualification of the voter. If 
the acts of 1891 are treated as they must 
be treated, as unconstitutional and void, 
his whole case falls to the ground. No 
actual fraud was committed against him; 
he has not been deprived of a vote to 
which he was entitled, and doubtless re¬ 
ceived as many votes as Contestee Ev¬ 
ans from persons who did not produce 
their tax receipts; but, as has been fully 
shown, the majority of the committee 
has precluded Contestee Evans from fully 
showing the fact. No disturbances or 
acts of violence occurred and the proof 
is cumulative from both democratic and 
republican sources that the last Govern¬ 
or’s election was as fair as any that has 
been held in Tennessee for many years. 
The only frauds and wrongs shown were 
those perpetrated against Contestee Ev¬ 
ans and by which the contestant profited. 
In certain counties large numbers of 




20 


THE MINOKITY REPOKT OE 


votes actually aud honestly cast for Cou- 
testee Evans and for Hon. A. L. Mims 
for Governor were corruptly counted for 
Contestant Turney. Appalling frauds 
were committed in Lauderdale, Fayette 
and some other counties, subverting and 
reversing the will of the voters. In 
many precincts voters were not allowed 
to witness the voting or the counting; 
they were required to hand their ballots in 
at windows and apertures in dark rooms, 
and, in one instance, in a wooden booth 
set on wheels, so high that it was im¬ 
possible for them to see the ballot box 
or know what became of their ballots 
after they were handed to the officer; in 
such cases all the officers of the election 
belonged to the political party favoring 
the election of contestant, or, if represen¬ 
tation from another political party was 
allowed, a person who could neither read 
nor write was selected to provide against 
detection of frauds; and the counting of 
the votes was conducted behind closed 
doors, the electors being denied admis¬ 
sion. Fictitious names, names of de¬ 
ceased persons and non-residents, and 
of persons who did not attend the election 
or vote were placed on the poll lists as 
having voted. By the fraudulent count, 
clandestinely conducted, it was made to 
appear and certified by the officers of 
election that Contestant Turney received 
not only the votes of all the fictitious, 
dead and non-resident names on the poll 
lists, but many hundreds of votes actual¬ 
ly and honestly cast against him. Evans 
and Mims votes were converted by the 
legerdemain of the counting into Turney 
votes. It is unnecessary to go into de¬ 
tails; the facts are fully shown, and no 
effort was made to contradict them. Lau¬ 
derdale county may be taken as an illus¬ 
tration: At one precinct, where the total 
vote was 175, Evans received at least 
102 and Mims 3 votes; yet the fraudulent 
count gave Turney 168, Mims 7, and Ev¬ 
ans none. At another 322 names appear 
on the poll list; at least 28 votes were 
cast for Evans, and at least 16 ^ "ms; 
yet 318 votes were counted for Turney, 
Evans being allowed none and Mims 
only 5. And at this precinct 318 votes 
were counted for the entire democratic 
ticket, although it was admitted by prom¬ 
inent democrats that they scratched and 
did not vote the straight ticket. At an¬ 
other precinct in the same county, where 
the poll list contained 169 names, Evans 
received at least 53 votes and Mims 6. 
yet Turney was allowed 127. Miras 6 
and Evans only 36 votes in the fraudulent 
count. At still another precinct the re¬ 
turns were corniptly made to show that 
Turney received 124 votes, Evans one 
vote and Mims 48 votes, when, in fact, 
at least 105 of the 172 votes polled were 
actually and honestly cast for Mims, and 
not exceeding 66 votes could possibly 
have been cast for Tirney. No effort 
was made to contradict these facts; the 
officers of election were not even put upon 
the stand. 


The evidence taken in Fayette county 
and the ruling of the majority thereon 
offer food for suggestions of a most as¬ 
tounding character. The charges of Con- 
testee Evans to this county will be found 
on pages 95 to 102 of the book of plead¬ 
ings. The grossest frauds and violations 
of election laws were charged. As to 
several districts of the county it was 
proven beyond a reasonable doubt by 
many individual voters whose testimony 
is not impeached that they had voted for 
Contestee Evans. But the proof shows 
that not 10 per cent, of such votes were 
counted by the election officers for Evans 
and the balance were added to the Tur¬ 
ney vote. The only contradiction of such 
most conclusive proof is made by the 
evidence of election officers, who testify 
that the election was fair and the vote 
was counted right. To illustrate, in the 
Fourth civil district 105 witnesses swore 
positively that they voted for Evans. A 
prominent and highly respected citizen, 
v-hose testi)iiony is unimpeached and un¬ 
impeachable, swore that he furnished 
these voters Evans tickets. Two elec¬ 
tion judges testified that they counted 
the vote correctly. Similar testimony 
was made in several other districts. The 
majority of the committee, by a process 
of reasoning which we cannot follow or 
concur in, chose to credit the two elec¬ 
tion judges in preference to the corrobo¬ 
rated testimony of the^ individual voters. 
The same conditions existed in the Somer¬ 
ville precinct, at which two of the judges 
of election were ignorant colored men. 
The district is a large town inhabited by 
many intelligent and educated people. 
The vote referred to should have been 
deducted from Turney and counted for 
Evans. This, our conclusion, is fully 
borne out by the charge of his honor, 
the present justice of the supreme court 
of the United States, Howell E. Jackson, 
to the jury in the case of United States 
vs. Carpenter, 41 Federal Reporter, 330, 
tried in 18^, where Fayette county elec¬ 
tion judges had been indicted and where 
the facts proven were almost identically 
the same as those shown in the Novem¬ 
ber election in Fayette county. As to 
two of the districts contestant substan¬ 
tially admits the charges made. (Record, 
pages 112^1260.) 

Can it be that members of this honor¬ 
able body, charged with the duty of do¬ 
ing justice between the litigants, will 
shut their eyes to these glaring frauds 
against the contestee, and see only the 
insignificant technicalities relied upon 
under an unconstitutional law by the 
contestant? Are these frauds to be giv¬ 
en effect and rewarded, or shall the pu¬ 
rity of the ballot box be defended and 
protected ? 

The people in their sovereign capacity 
have spoken out in no uncertain tone. 
Their verdict at the ballot box was that 
the Hon. H. Clay Evans should be Gov¬ 
ernor of Tennessee; that verdict has been 





INVESTIGATION OF GUBERNATOKIAL CONTEST. 


21 


returned in the proper and legal way to 
the speaker of the senate. If all the 
votes honestly cast for Mr. Evans had 
been honestly counted for him his plu¬ 
rality would be much greater than shown 
by the returns. 

We earnestly recommend that the will 
of the people be carried out; that the con¬ 
test be decided in favor of Mr. Evans 


and that he be promptly inaugurated 
Governor of Tennessee. 

Respectfully submitted. 

JAMES JEFFRIES, 
W. J. HODGES, 

SAM P. ROWAN, 
JNO. W. STONE, 

D. C. KEENEY. 


/ 





THE EXCEPTIONS 

FILED BY COUNSEL 

for 

Mr. EVANS. 


Peter Turney, Contestant, vs. H. Clay 
Evans, Contestee, Feb. 25, 1895. 

Exceptions to the Actions and Rulings of 
the “Committee on Governor’s Elec¬ 
tion,’’ appoined by the General as¬ 
sembly of Tennessee. 

And now comes Contestee Evans, and, 
protesting as heretofore against the con¬ 
stitutionality and validity of the contest 
law of Jan. 29, 1895, he excepts to the 
rulings and decisions of the “committee 
on Governor’s election” appointed under 
the sixth section of said act. 

For grounds of exceptions he says: 

1. By the ninth section of said act it is 
provided that “the pleadings and objec¬ 
tions shall be referred to the committee” 
and that “the committee shall take evi¬ 
dence and consider and report on the ob¬ 
jections to the speaker of the senate;” and 
by the nineteenth section it is provided 
that “when the report is made the two 
houses of the general assembly shall con¬ 
sider the report, determine the election * 
* * decide all questions involved, pass 
upon the objections and determine the 
contest.” 

The Committee Cannot Decide Any- 
tliinsr. 

These provisions clearly express that the 
general assembly is to finally consider, 
pass upon and determine all questions as 
to materiality and relevancy of issues and 
of proof offered, and upon all questions of 
law and fact which may arise upon the 
pleadings or upon the evidence; but that 
the committee has power and jurisdiction 
only to “hear and consider,” not “hear, 
dnally pass upon and determine” upon any 
of said matters. Contrary thereto the com¬ 
mittee has. as appears from the record of 
its proceedings here referred to, under¬ 


taken to finally eliminate from the plead¬ 
ings and from consideration many and 
weighty charges and specifications; and by 
doing so, and by peremptorily directing its 
sub-committee to take, hear and receive 
such evidence only as by it is determined 
to be material and relevant and to take no 
other evidence, and none upon the plead¬ 
ings by it eliminated, the committee is de¬ 
priving the general assembly from obtain¬ 
ing knowledge of all the facts connected 
with the election of Nov. 6, 1894, as set 
out in the pleadings, and from determining 
the contest upon its merits. 

2. The contest act contemplates that the 
contestant and the contestee shall make 
up the pleadings and the issues and that 
the committee shall hear and take and re¬ 
port upon proof upon the pleadings and is¬ 
sues thus made up by the parties; while 
the committee has undertaken to cut out 
of and remove from the pleadings many 
issues on material matter and has directed 
its sub-committees not to hear and not to 
receive any proof which may be offered on 
such parts of the pleadings and issues thus 
cut out and removed. 

3. The committee has by its rules de¬ 
termined that no proof shall be taken, 
either by way of depositions in the manner 
recognized by the courts of the country or 
by its sub-committees or otherwise, on any 
of the questions raised in the pleadings 
which the committee has considered and 
adjudged immaterial or insufficient, as 
shown by its record, which is referred to; 
thus depriving the general assembly from 
having before upon the final trial of the 
contest, the facts of the election of the 6th 
of November, 1894, which are the subject 
of the contest. 

Suppressing Proper Proof. 

4. The committee has refused to inves- 




24 


THE MINORITY REPORT OF 


tigate whether a voter had in fact paid 
the poll tax for which he was liable, in 
all cases where the sole issue in the plead¬ 
ings is based upon non-production or fail¬ 
ure of the judges of election to require 
production of poll tax receipts, duplicates 
or aflS davits of loss of receipts. The com¬ 
mittee is thereby preventing the fact of the 
actual payment or non-payment of the tax 
to be laid before the general assembly, and 
is thus subordinating the great fact of pay¬ 
ment to the mere technical inquiry into ob¬ 
servance or non-observance of certain spe¬ 
cific rules and regulations as to evidence 
of payment. 

5. By its rulings on the poll tax question 
that evidence of payment is not proper or 
admissible when it is shown that receipts, 
duplicates or atfidavits of loss -were not re¬ 
quired to be produced, the committee has 
undertaken to set aside that clause of the 
constitution which points to the judges of 
election as the tribunal to whom satisfac¬ 
tory evidence of the payment of the poll 
tax shall be made by the voter. The gen¬ 
eral assembly, in order to intelligently 
judge and decide who is a legal voter, 
should have before it the facts as to 
whether or not a voter paid his poll tax in 
addition to the facts as to production or 
non-production of statutory evidence of 
payment. 

6. By the action of the committee in 
arbitrarily determining the itinerary of the 
sub-committees and appointing the time 
for the hearing of evidence in the various 
counties, the course of preparations for 
taking the testimony has been materially 
interrupted, and especially in some of the 
counties first to be taken up, rendered ex¬ 
ceedingly difficult, if not altogether im¬ 
practicable. 

7. By prescribing that no subpoenas for 
witnesses shall issue except upon written 
application stating the questions of fact 
upon which the witnesses shall be exam¬ 
ined and what their testimony is expected 
to be upon those questions, the committee 
has established an unnecessarily harsh 
rule, which is utterly impracticable for the 
purposes of a full and fair investigation. 

8. By declining to provide for stenog¬ 
raphers, although the contest act especially 
confers authority, the committee deprives 
the general assembly of the beneht of an 
examination of the full and entire testimo¬ 
ny to be taken. 

An, Unreliable Rnle. 

9. The rule based upon the United 
States census of 1890 as applicable to de¬ 
termine the average age of voters in the 
election of 1804 is arbitrary and mislead¬ 
ing, the testimony based upon this rule is 
unreliable and the rule admits of secon¬ 
dary evidence of fact which is easily sus¬ 
ceptible of proof by primary evidence. 

10. The contest act, as well as the con¬ 
stitution, recognize the county as a unit 
in the Governor’s election. The charges 
of the petition of Contestant Turney are 
almost exclusively based upon allegations 


of conspiracy among republicans to violate 
and not observe that provision of the elec¬ 
tion laws requiring production of evidence 
of payment of poll taxes. The committee 
has ruled that where the petition charges 
such violation in certain republican dis¬ 
tricts in a county objected to, even where 
the answer sets up like irregularities in 
other specified democratic districts, no 
proof is admissible as to these latter dis¬ 
tricts. The rule to exclude such proof de¬ 
stroys the constitutional unit of the county, 
while at the same time, opportunity is not 
given to disprove the charge of conspiracy 
among republicans by showing that the 
election in all the districts of the county, 
democratic and republican, was held alike, 
and the poll tax laws observed or not ob¬ 
served alike by republicans and democrats. 

Republican Conspiracy Refuted. 

11. The petition of Contestant Turney 
charging a conspiracy among republicans 
not to observe the provisions of the poll 
tax laws in certain republican counties, the 
committee erred in refusing to allow proof 
to be made going to show that in most of 
the counties of the state, democratic and 
republican alike, and in most of the vot¬ 
ing precincts of the state outside of the 
cities the poll tax laws as to the produc¬ 
tion of evidence were observed or not ob¬ 
served alike, and were construed alike by 
the people all over the state. This char¬ 
acter of proof should have been admitted, 
not for the purpose of throwing out votes 
in the counties not especiallly objected to 
in the answer, but to meet the charges of 
conspiracy by evidence which is considered 
competent in such cases by the courts of 
the country. The averments to the an¬ 
swer, among others, on this subject which 
were ruled out by the committee are as 
follows: 

Contemporaneous Construction. 

In this connection, contestee says that, 
as he is informed and believes, in many 
democratic counties and voting precincts, 
others than those heretofore and hereinaf¬ 
ter objected to, in fact, in all the rural 
districts of Middle and West Tennessee, 
where Contestant Turney received major¬ 
ities, a compliance with the provisions of 
the statutes as to a certain manner in 
which evidence of payment of poll taxes 
should be made to the judges of election 
was not had. He will be prepared to prove 
his allegation, and he insists upon it, so 
as to show that the construction of the 
poll tax laws by the people of said dis¬ 
tricts and voting precincts of Middle and 
West Tennessee was uniform, and so as 
to show further, that if the investigation 
as to the non-compliance with the merely 
technical violations of law—charged by 
Contestant Turney, as to republican coun¬ 
ties and districts—^is to be limited to such 
districts and counties, when the same ex¬ 
isted in democratic counties and districts 
which gave Contestant Turney majorities, 
and without which he would not have re¬ 
ceived as many votes as were cast for the 
Hon. A. L. Mims, necessarily follows, 





INVESTIGATION OF GUBERNATORIAL CONTEST. 


25 


that said Contestant Turney would be the 
beneficiary of the very same violations of 
law and irregularities of which he himself 
complains in regard to republican counties 
and districts exclusively. 

Omissions. 

In the following districts of counties ob¬ 
jected to by Contestant Turney, which 
gave democratic majorities, or majorities 
for Contestant Turney, he carefully avoids 
making any objections on account of non- 
compliance with the poll tax law and other 
alleged irregularities, viz: 

Cocke County—First, Eighth and Six¬ 
teenth Districts. 

Campbell County—^Twelfth District. 

Crockett County—Second, Third, Fourth, 
Ninth and TVelfth Districts. 

Greene County—Eighteenth and Twen¬ 
ty-fourth Districts. 

Hawkins County—^Fifth, Ninth and Six¬ 
teenth Districts. 

Carter County—Eighth District. 

Claiborne County—Fourth, Seventh and 
Eighth Districts. 

DeKalb County—First, Fifth, Sixth, 
Seventh, Ninth, Eleventh, Fourteenth, 
Seventeenth, Twenty-first and Twenty- 
second Districts. 

Grainger County—Second and Eleventh 
Districts. 

Hamblen County—Fourth and Fifth 
Districts. 

Macon County — Fourth, Eleventh, 
Twelfth and Thirteenth Districts. 

Morgan County—^Fourth District. 

Rhea County—First precinct of Second 
District; Fourth, Fifth, Sixth, Ninth and 
Fourth Districts. 

Union County—Third District. 

But Contestant Turney confined his ob¬ 
jections in said counties to complaints 
against the districts thereof which gave 
majorities for Contestee Evans. Contestee 
insists that if he is to lose votes by con¬ 
testant’s construction of the poll tax law 
in the districts challenged, he should also 
lose the votes of those voting for him in 
violation of his construction of the law. 

12. The cross petition of Contestee Ev¬ 
ans charges that in the following counties 
large numbers of voters voted for Con¬ 
testant Turney without having paid the 
poll taxes for the year 189B for which 
they were liable, to vsdt: In the counties of 
Cannon, Chester, Clay, Coffee, Dickson, 
Gibson, Grundy, Hardeman, Haywood, 
Henry, Humphreys, Lauderdale, Lancoln, 
Madison, Marshall, Maury, Putnam, Over- 
ton, Moore, Rutherford, Wilson, VanBu- 
ren, Robertson, Sequatchie, Sullivan, Sum¬ 
ner, White. 

There is, under the head of each of the 
said counties in the cross-petition, a special 
charge to the effect that many voters so 
voted for Contestant Turney without hav¬ 
ing paid the poll taxes. For example as to 


Wliite County. 

In said county Contestant Turney re¬ 
ceived 1,302 votes; as many as 800 of the 
persons who cast said ballots being liable 
for the poll tax of 1893, and not having 
paid the same prior to said election.” 

Oiles County. 

“That of the 1,083 votes then and there 
cast for Contestant Turney, more than 
1,000 were cast by persons liable for the 
poll tax for the year 1893. 

“That of such voters so liable for such 
poll tax, a large number (the exact num¬ 
ber being to your contestee unknown) had 
not in fact paid such poll tax, but were 
nevertheless allowed to vote for Contest¬ 
ant Turney, without producing the evi¬ 
dence required by the statute that they had 
paid said poll tax.” 

Franklin County. 

“That the returns from Franklin county, 
opened and published by the speaker of the 
senate, show that Contestant Turney re¬ 
ceived 1,476 votes, Contestee Evans 595 
and Hon. A. L. Mim« 798 for Governor; 
and of the 1,476 votes then and there cast 
for Contestant Turney, at least 900 were 
cast by persons liable for poll tax. A lai*ge 
number (the exact number being to your 
contestee unknown, but will be shown in 
the evidence) had not paid poll tax for 
1893, but wer» nevertheless allowed to vote 
for Contestant Turney and their votes 
were so counted and embraced in said re¬ 
turns.” 

Clieatlium County. 

“That of the 829 votes then and there 
cast for Contestant Turney, at least 500 
were cast by persons liable for the poll 
tax for the year 1893. 

“That of such voters so liable for said 
poll tax, a very large number (the exact 
number being to your contestee unknown, 
but will be shown in the evidence) had not 
in fact, paid such poll tax, but were, never¬ 
theless, allowed to vote for the Contestant 
Turney, and their votes were so counted 
and embraced in said returns.” 

The above are the illustrations of the 
charges made as to each of the twenty- 
seven counties hereinbefore named specifi¬ 
cally ; but as to none of said charges does 
Contestant Turney’s replication contain a 
special denial. Yet there is a single gen¬ 
eral denial on page 159 in the following 
words: 

“The contestant, answering the charges 
of contestee’s cross-petition, that votes 
of contestee’s cross-petition, that votes 
were cast and counted for contestant 
which were illegal by reason of the voter 
not having paid his poll tax, or by reason 
of his failure to produce his poll tax re¬ 
ceipt or any other statutory evidence of 
payment, as the election law prescribes, 
says contestant does deny that any consid¬ 
erable number of votes were cast for him 
by parties who had not paid their poll tax.” 

While this denial is general and evasive 
and contestee was entitled to a pro con- 





26 


THE MINORITY REPORT OF 


fesso on all the charges made above as to 
all the counties named, yet Contestant 
Turney presented it as an issue; neverthe¬ 
less, the committee refused to treat it as 
such, and the charges are all eliminated 
and no proof is to be received or taken on 
any of them, notwithstanding they involve 
the great fact of non-payment of poll taxes 
by voters in twenty-seven counties. 

13. The cross-petition of Contestee Ev¬ 
ans contains as to at least twenty counties 
allegations like the following or substan¬ 
tially like the following: 

Lincoln Connty. 

“That of the 1,720 votes then and there 
cast for said Contestant Turney, at least 
1,200 were cast by per.sons liable for poll 
tax for the year 1893. 

Said voters so liable for said poll tax 
were not required to produce, and did not 
in fact produce, to the judges of the elec¬ 
tion, at the several precincts, districts and 
voting places of said county, any statutory 
evidence 'that they had paid poll tax, but 
their votes were, nevertheless, received 
and counted for the Contestant Turney. 

“In the Third District of said county, in 
the Fifth District, at both precincts, in the 
Seventh District, in the Thirteenth Dis¬ 
trict and in the Seventeenth District Con¬ 
testant Turney received more than 100 
votes which were illegal upon the ground 
of non-compliance by the voters and elec¬ 
tion judges with the poll tax laws of this 
state, and because the voters liable for a 
poll tax did not produce the required evi¬ 
dence of the payment thereof.” 

Maury County. 

“Of the 2,043 votes then and there cast 
for said contestant, at least 1,000 were 
cast by persons liable for poll tax for the 
year 1893. 

“Said voters, so liable for said poll tax, 
were not required to produce, and did not 
in fact produce, to the judges of election 
at the several precincts, districts and vot¬ 
ing places of said county, except in the 
town of Columbia, any statutory evidence 
that they had paid said poll tax, but their 
votes were nevertheless received and 
counted for the contestant.” 

Mndison County. 

The returns from said county, as opened 
and published by the speaker of the senate, 
show that the contestant received 2,556 
votes, your contestee 584 votes and A. L. 
Mims 462 votes for Governor. Of the 2,556 
then and there cast for said Contestant 
Turney, at least 1,500 were cast by per¬ 
sons liable for the poll tax of the year 
3898. 

The democratic judges of said election, 
in all the districts and voting places of said 
county, allowed democrats to rote who had 
not paid their poll tax, and also allowed 
other democrats to vote who did not fur¬ 
nish evidence as required by law of the 
payment of poll taxes; although all of said 
voters were liable to said poll tax. All of 
said democrats so illegally allowed to vote 


at each of said voting places voted for 
Peter Turney for Governor, but contestee 
cannot now state the exact number of said 
illegal votes in each of said precincts. 

Erorneous Rulings. 

The committee erroneously ruled upon 
the above charges as to Lincoln county not 
to admit proof except as to 3d, 5th, 7th 
and 37th districts, and excluded proof as 
to all other “precincts, districts and voting 
places” of Lincoln. And it excluded rroof 
altogether as to the allegations set out con¬ 
cerning Maury and Madison. 

And under this same ruling upon like or 
substantially like allegations, the commit¬ 
tee erroneously excluded all proof concern¬ 
ing non-production of evidence as to all of 
Fayette county except one district, all of 
Dyer county except one district, all of 
Franklin county except two districts, all of 
Grundy except three districts, all of 
Hardeman except one district, all of Lau¬ 
derdale and all of Putnam except two dis¬ 
tricts, all of Wilson except two districts, 
all of White except five districts, all of 
VanBuren except three districts, all of 
Henry except three, all of Madison and 
Maury, all of Cannon except two districts, 
all of Clay except two districts, all of Cof¬ 
fee except one district, all of Sumner ex¬ 
cept four districts, all of Tipton except 
two districts, all of Weakley except two 
districts. 

14. The rulings of the committee to re¬ 
fuse investigation of charges in any dis¬ 
tricts of a countir where the pleadings spec¬ 
ify the entire county or all of the districts 
of a county except certain districts named, 
or where there are charges of irregulari¬ 
ties in the certain counties, especially in 
certain specified districts thereof, are er¬ 
roneous because the contest law expressly 
prescribes that there may be objections, 
designating counties, civil districts, wards 
and precincts, meaning thereby, so con¬ 
testee is advised, either “counties” or “civ¬ 
il districts,” or “wards” or “precincts.” 
Specifications as to either are good and 
should not be eliminated. 

15. The committee erred in ruling out 
the following allegations as to Davidson, 
Haywood and Shelby counties, and also in 
ruling out allegations of kindred character 
in numerous other counties, and fin direct¬ 
ing that no proof shall be taken thereon in 
said counties named and others as to 
which similar allegations are made in the 
petition: 

Davidson County. 

“In the city of Nashville voting pre¬ 
cincts, the particular precincts not known, 
many ballots, the number not known, 
which had been marked and voted for con¬ 
testee were during the count read out and 
counted fraudulently for Turney. As soon 
as contestee heard of this fraud he applied 
at the sheriff’s office for the purpose of 
having preserved the ballots with a view to 
a possible recount, but the ballots had 
'been destroyed. 

No republican judge was appointed in the 
following wards and districts, but they 





INVESTIGATION OF GUBERNATORIAL CONTEST. 


27 


were all democrats, viz: (Here set oat.) 

The clerks and assistant registrars and 
receivers of votes were all democrats in 
all the wards and districts. 

The democratic workers were allowed 
access to, and were, in fact, inside of the 
election booths and i>olling places in vio¬ 
lation of law. 

The registrars were not appointed ninety- 
days before the election, but were appoint¬ 
ed only a few days before the registration 
commenced and no legal advertisement of 
the registration was made. 

The registrars were not appointed from 
different political parties, as required by 
law, but were all democrats, in the follow¬ 
ing wards and districts: 

Wards 3, 4, 6, 8, 9, 10, 11, 12, 14, 17, 18, 
19 and 20. 

Districts 2, 3, 4, 7, 8, 9, 10, 11, 12, 14, 
17, 18, 19, 20, 21, 22, 23, 24 and 25. 

Haywood. County. 

“In this county only 70 republican (or 
Evans) votes were counted; there are in 
this county 3,000 voters who are anxious 
to vote for H. Clay Evans, but they did 
not vote, although they were qualified 
voters; because of the fraudulent course of 
the democratic election judges and clerks 
notoriously practiced in many previous 
elections of counting republican votes for 
democratic candidates. At each and every 
election held for a number of years in this 
(Haywood) county, this fraudulent prac¬ 
tice of counting republican votes as though 
they were democratic votes bad been in¬ 
dulged in by democrats against the pro¬ 
tests of the republicans who were power¬ 
less to prevent it, and who, at the Novem¬ 
ber election, rather than again see their 
votes counted for democratic candidates, 
abstained from voting altogether. 

The democratic coiinty court refused to 
give the republican representation on the 
board of election judges and clerks in all 
the districts, but when the law was pointed 
out to the court the appointment of intelli¬ 
gent republicans whose name^ were fur¬ 
nished was refused; and instead, non-rep¬ 
resentative republicans, -who were ignorant 
men, were appointed by said court, there¬ 
by enabling the democrats to count the 
votes as they pleased. For this reason the 
republicans abstained from voting in the 
November election. 

The registration of voters in Brownsville 
was fraudulent, illegal and void; the same 
was not properly advertised and the regis¬ 
trars were not properly appointed or qual¬ 
ified. 

The republicans were denied representa¬ 
tion in the board for the registration of 
voters and in the appointment of election 
judges and clerks. The whole machinery 
was fraudulently and illegally put into the 
hands of the democrats, and the republi¬ 
cans were thereby deterred from exercis¬ 
ing their right of voting at said election. 

At Brownsville, in said county, the reg¬ 
istration certificates were not taken up 
from the registered Turney voters as re¬ 
quired by law, thereby enabling said regis¬ 


tration certificates to be used by “repeat¬ 
ers” in voting for said Turney, and a num¬ 
ber of them were so used. 

“There were no tally sheets and poll lists 
of said election made out and filed either 
with the clerk of the circuit court or county 
court, as required by law. 

Shelby County. 

“The sheriff of said county illegally and 
fraudulently destroyed the tally sheets and 
poll lists of said election at the following 
voting places: Sixth ward of Memphis; 
Fourth district, old Union; Sixth district, 
Raleigh; Eighth district, new Union; 
Eighth district, Brunswick; Tenth district, 
Collinsville, Twelfth district, Oraville; 
Fourteenth district, Elmwood; Fourteenth 
district, Westwood; Seventeenth district, 
Byerstown; Eighteenth district, Buntyn; 
Eighteenth district, Lenox; Eleventh dis¬ 
trict, Germantown. The following wards 
and districts returned statements of the to¬ 
tal rote cast, but no tally sheets: 1st, 2d, 
3d, 4th, 5th, 6th, 7th, 8th, 9th and 10th 
wards of Memphis; districs 1, 2, 3, 5, 6, 
7, 8, 9, 12, 13, 16, 17 and 19. 

“These irregularities are so material that 
the entire election was rendered illegal, 
and the vote should be rejected. Said 
frauds and irregularities were committed 
by the sheriff to help contestant Turney 
out, and they were a part of the precon- 
cented plan, set on foot by the comptroller 
of the state, to fraudulently count Contest¬ 
ant Turney in, the comptroller having tele¬ 
graphed his friend, A. J. Harris, from 
Nashville, in substance, as follows: 

“Republicans conspiring to wipe us from 
the face of the earth. Turney our only 
salvation. See Patterson and McCarver. 
Do your best. 

(Siped.) JAMES A. HARRIS.” 

This telegram was sent out when the re¬ 
turns began to indicate the election of Con- 
testee Evans. 

The rulings of the committee to exclude 
these allegations as to Davidson, Haywood 
and Shelby and those of like character in 
other counties, is erroneous because con- 
testee is advised that such allegations if 
proven will set aside the entire election in 
counties where the irregularities occurred 
and where the frauds were committed. 

16. The committee erred in eliminating 
from the pleadings, and of declining to 
hear proof upon many of the averments in 
the answer touching the cause of the de¬ 
feat of the contestant at the polls and in 
also eliminating those averments going to 
show that conspiracy by republicans to 
violate the law, and not illegal votes cast 
for contestee, but refusal of democrats to 
rote for contestant, caused his defeat. 
Among the allegations, those erroneously 
ruled out and eliminated are the following: 

“Contestee Evans now proposes to show 
by facts and figures, about which there 
can be no doubt, that said Contestant Tur¬ 
ney was not defeated by illegal voting, but 
by"democrats refusing to vote for him; for 
it cannot be denied that Contestant Tur¬ 
ney’s administration of the state govern- 





28 


THE MIKOKITY EEPOKT OF 


ment, in many respects, had been disap- 

e ointing and more than dissatisfactory to 
is party. 

There are ninety-six counties in the 
state, in seventy-nine of which Contestee 
Evans made gains, while the Contestant 
Turney gained over the vote of two years 
before in thirteen counties only. The in¬ 
crease of contestee’s vote over the republi¬ 
can vote of 1892 was 4,527, which might 
be accounted for by the growth of popula¬ 
tion; but the Contestant Turney lost over 
his own vote of 1892, 21,992 votes, and 
this loss was mainly in the strong demo¬ 
cratic counties, lost over bis vote of two 
the thousands refused to vote for Contest¬ 
ant Turney. 

Tlie Real Cause of Turney’s Defeat 

Contestee here produces and liles as 
part hereof, marked exhibit B, a tabulated 
statement of the democratic and repub¬ 
lican vote for 1^2 and 1894, with the 
gains and losses of the candidates re¬ 
spectively; and Contestee Evans submits 
that this tabulated statement is suflEi- 
cient, taken together with another ex¬ 
hibit hereinafter shown and marked “C,” 
to convince Contestant Turney himself 
that he was not defeated by fraudulent 
votes, but by the refusal of his own par¬ 
ty to support him. For illustration, said 
Contstant Turney, in the strong demo¬ 
cratic counties, where the democrats by 
years before as follows: Davidson coun¬ 
ty 1,346, Shelby county 3,282, Montgom¬ 
ery county 702, Obion county 745, Stew¬ 
art county 352, Sullivan county 240, Bed¬ 
ford county 315, Cannon county 177, Cof¬ 
fee county 236, Crockett county 325, Dick¬ 
son county 355, Dyer county 510, Fay¬ 
ette county 459, Gibson county 713, Har¬ 
deman county 727, Haywood county 696, 
Humphreys county 359, Lincoln county 
596, Weakley county 675, Wilson county 
533. These are given as examples, and 
they tell the whole story, and show that 
the contestant was beaten by his owm 
party. 

No Fraud in Fast Tennessee. 

And Contestee Evans now proposes to 
show, by figures and facts, that the 
charges made by Contestant Turney of 
frauds in the thirty-three counties named 
by him, are utterly without foundation, 
if he means to say or intimate that the 
judges of these counties indiscriminateb’’ 
or generally, or to any large extent, per¬ 
mitted persons to vote who had not paid 
their poll taxes. The election for judges 
of the supreme court took place in Au¬ 
gust, 1894, and at which election five 
democratic judges were elected, and they 
have since been qualified and are now 
on the bench holding court, without an 
intimation of fraud in their election. At 
the time of this election the law was 
the same as at the election in November, 
and the same qualifications and limita¬ 
tions were fixed upon the elector. Of 
the thirty-three counties challenged by 
the contestant, Turney, thirty of them 
cast less votes at the November election 


than at the August election. The aggre¬ 
gate excess of votes cast in the thirty- 
three counties in August over November 
is 11,026. This table shows that the 
wholesale charge of fraud is untrue,^ for 
there were more than 11,000 qualified 
voters in the thirty-three counties chal¬ 
lenged by Contestant Turney than voted 
at the November election, assuming that 
the judges of the supreme court were 
voted for by qualified voters. Contestee 
Evans has no knowledge, information or 
belief that the election laws were sys¬ 
tematically, purposely and intentionally 
violated at and in said counties, districts 
and precincts challenged by Contestant 
Turney, and he denies the same. 

16. And the committee erred in ruling 
out and eliminating from the petition and 
refusing to hear and receive proof upon 
the following allegations, which are ma¬ 
terial and competent: 

As to Violation of Poll Tax Daws. 

“Contestee Evans further charges and 
avers that when by the refusal of the sec¬ 
retary of state to give to the public infor¬ 
mation as to the contents of the official 
returns of the vote for Governor, certi¬ 
fied to him by the sheriffs of the several 
counties upon blank forms previously pre¬ 
pared by said secretary of state, and 
sent out by him to the sheriffs, and from 
other sources of information, it became 
known or generally believed by the peo¬ 
ple that Contestee Evans had been elect¬ 
ed Governor, the contestant, Hon. Peter 
Turney, began at once to send out into 
the various republican counties of the 
state an army of employes of the comp¬ 
troller’s office to investigate the trustees’ 
books of such counties for the alleged 
purpose of inquiring as to the alleged 
non-observance of the poll tax laws of 
the state in such counties, and he did, 
with the active aid of the said comp¬ 
troller, send out into such counties a 
large number of his agents or tax de¬ 
tectives to^make said investigations and 
inquiries. 

“It was assumed that said agents and - 
attorneys of the comptroller were sent 
out to make said investigations under the 
authority of an act of assembly authoriz¬ 
ing that course to be pursued, and they 
were clothed by the comptroller with in¬ 
quisitorial powers, authorizing them to 
examine the books and records of the 
trustees’ offices and other public offices. 
They were to all intents and purposes 
clothed with the panoply of the state, for 
the said officers yielded and felt that they 
were bound to yield ready obedience to 
their demands. It is worthy of remark 
that the Governor and comptroller had 
never before in the history of the state 
felt the necessity, out of their supreme 
regard for the proper collection of that 
part of the sacred school fund represent¬ 
ed by the revenue arising from the poll 
taxes, to send out simultaneously so many 
bf the paid agents of the state, though 
the law under which it was claimed that 
the authority to send them out existed 








INVESTIGATION OF GUBEKNATORIAL CONTEST. 


29 


had been in force for several years, and 
when, in point of fact, more revenue was 
collected from poll tj^xes in the year 1804 
than had ever before been collected in 
any previous year of the history of the 
state. 

Evans at Great Expense. 

To meet the unjust and partial investi¬ 
gations which Contestant Turney through 
the machinery of the comptroller’s office 
had set on foot, Contestee Evans at great 
private expense, began and prosecuted 
efforts to have an investigation extended 
and made into the same subject in demo¬ 
cratic counties, but he met with three 
classes of obstruction: 

1. The democratic trustees in some 
counties, acting, as it is fair to presume, 
under orders from their superiors in the 
command of the democratic forces, ab¬ 
solutely refused to allow contestee’s 
agents or friends access to their books, 
and refused to give him certified state¬ 
ments of their contents. 

2. In some counties the said democratic 
trustees offered to supply the information 
desired, but demanded such exorbitant 
and unjust fees that contestee was un¬ 
willing to submit to their demands. 

3. Some of the county trustees allowed 
contestee’s friends access to their books, 
but they had been so loosely and inartis- 
tically kept that they showed nothing 
upon which any accurate information 
coul^ be gained. 

For these and on account of the ob¬ 
structions above stated Contestee Evans 


has been unable to set out more specific¬ 
ally than he has done the special pre¬ 
cincts and districts in the counties voting 
for Contestant Turney wherein violations 
of the poll tax laws existed, and has also 
been unable to give more specific state¬ 
ments than he has given as to the num¬ 
ber of violations of said law in said dis¬ 
tricts and precincts.” 

Conclusions. 

And so Contestee Evans, by counsel, 
protests and excepts to said rulings of 
this committee set out and others to be 
shown for the reasons herein set out and 
others to be shown, and says: 

1. The committee has no power and ju¬ 
risdiction to suppress any part of the 
pleadings and none to decline to hear 
proof upon any of the issues in the plead¬ 
ings raised. 

2. The matters in the said cross-peti¬ 
tion eliminated by the committee and 
upon which they decline to hear proof 
are material and the allegations suffi¬ 
cient. 

He asks that these exceptions be re¬ 
ceived and filed and that they be made 
part of the record. Respectfully sub¬ 
mitted. 

JOHN RUHM & SON, 

A. S. COLYAR, 

G. N. TIELVIAN, 

JESSE E. ROGERS, 
JOHN AEEISON, 

EEWIS SHETPHERI), 
ROBT. PRITCHARD, 
Attorneys for H. Clay Evans, Contestee. 




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